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FOREWORD
EXCEPTIONAL FREEDOM—THE ROBERTS COURT, THE
FIRST AMENDMENT, AND THE NEW ABSOLUTISM
Ronald K.L. Collins*
ABSTRACT
Yesterday we had one view of the First Amendment; today we have
another. Yesterday liberals hailed the First Amendment; today it is
conservatives. Yesterday the First Amendment was the rallying cry
of anti-federalists, abolitionists, Bolsheviks, Communists, and antiwar demonstrators; today it is the banner flown by corporations, bigmoney political PACs, tobacco companies, and advertising agents
along with a motley crew of crackpots. Yesterday the liberty
principle of the First Amendment coexisted with the equality
principle of the Fourteenth Amendment; today they often war.
Yesterday lofty free speech theories reigned; today various and
varying judicial doctrines rule the roost. Yesterday the First
Amendment was a treasured freedom; today many deem it to be an
amendment in need of amending. And so it has come to pass.
“Nothing endures but change.” Heraclitus‟s maxim takes on new
meaning in modernity. Change is here; modernity has arrived. The
era of the Roberts Court and the First Amendment is well into the
groove of its constitutional mark. To date, the work-product of the
Court has produced twenty-nine First Amendment free expression
opinions. Constitutional claims were sustained in 14% of those
cases. While a notable portion of the cases in which claims were
* Harold S. Shefelman Scholar, University of Washington, School of Law. As with so
many of my other works, I am greatly indebted to David Skover for his thoughtful comments
and suggestions. I also benefitted from several of the oral comments made by Adam Liptak
and Professors Susan Herman and Alan Morrison during a First Amendment program held at
the Albany Law School and sponsored by the Albany Law Review on September 27, 2012.
Symposium, What Are We Saying? Violence, Vulgarity, Lies . . . And the Importance of 21st
Century Free Speech, 76 ALB. L. REV. 405, 781 (2013).
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denied were rendered by a unanimous or near-unanimous vote, the
Roberts Court has nonetheless been badly divided (and ideologically
so) on several key issues such as student speech, government
employee speech, and expression related to support for so-called antiterrorism groups. In that cluster of cases the Court has diminished
the staying power of the First Amendment. But in another class of
cases involving certain kinds of content-discrimination, the Court
has been quite vigorous in its defense of free speech freedom. What
emerges from the latter is a new kind of First Amendment
absolutism largely premised on the maxim that expression is
protected unless it clearly falls within one of the traditional
categories of unprotected speech. This “exceptional freedom” is the
main focus of what follows in this Foreword. While it represents a
new high water mark of constitutional protection for speech, it also
signals a stark point of demarcation, on the other side of which
certain kinds of speech receive little meaningful protection.
Absolutism may have a place in a sensible theory of freedom
of speech, but not as the comprehensive methodology.
—Rodney Smolla1
What a Court Term it was, what with the health care2 and
immigration3 cases and all the fanfare afterwards. For the First
Amendment community, the 2011–2012 Term was also quite
significant: there were the Court‘s rulings in the indecency case,4
the criticism of the Vice President Cheney immunity case,5 the
copyright extension case,6 the public sector union fee case,7 the
1 1 RODNEY A. SMOLLA, SMOLLA AND NIMMER ON FREEDOM OF SPEECH: A TREATISE ON THE
FIRST AMENDMENT § 2.06[4], 2–57 (1994) (emphasis added).
2 Nat‘l Fed‘n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2577 (2012).
3 Arizona v. United States, 132 S. Ct. 2492, 2497 (2012).
4 FCC v. Fox Television Stations, Inc. 132 S. Ct. 2307, 2320 (2012) (holding that because
the FCC failed to give Fox or ABC fair notice prior to the broadcasts in question, fleeting
expletives and momentary nudity could be found actionably indecent, and the Commission‘s
standards as applied to said broadcasts were unconstitutionally vague); see also FCC v. CBS
Corp., 132 S. Ct. 2677, 2677 (2012) (Roberts, C.J., concurring) (regarding Janet Jackson,
wardrobe malfunction, and fleeting expletives), denying cert. to 663 F.3d 122 (3d Cir. 2011);
id. at 2678 (Ginsburg, J., concurring) (same).
5 Reichle v. Howards, 132 S. Ct. 2088, 2091 (2012).
6 Golan v. Holder, 132 S. Ct. 873, 878 (2012).
7 Knox v. Serv. Emps. Int‘l Union, Local 1000 132 S. Ct. 2277, 2295–96 (2012) (upholding
First Amendment challenge to a public-sector union policy that required objecting nonmembers to pay a special fee for the purpose of financing the union‘s political and ideological
activities).
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Stolen Valor case,8 and the Court‘s 5–4 refusal to revisit9 the
Citizens United v. Federal Election Commission10 issue. In one way
or another, four of the six free expression claims prevailed in the
Court this past Term, this to the partial dismay of liberals who took
exception to the Court‘s ―anti-labor‖ ruling and its sub silentio
reaffirmation of Citizens United,11 while conservatives took
exception to the Court‘s ruling in the lying about military medals
case.12
Such First Amendment cases, and yet others by the Roberts
Court, inform several of the articles in this Symposium. Simply
consider some of the questions explored in this issue: to what extent
and in what ways does the Alvarez ruling shape the future of false
speech, particularly in the case of lying about military medals?13 In
light of the Court‘s most recent ruling concerning the law of
broadcast regulation, what posture should the Federal
Communications Commission take concerning indecency?14 To
what extent does the First Amendment protect corporate speech
insofar as commercial expression is concerned, particularly in the
case of the regulation of tobacco product-image advertising?15 What
United States v. Alvarez, 132 S. Ct. 2537, 2542 (2012).
Am. Tradition P‘ship, Inc. v. Bullock, 132 S. Ct. 2490, 2491 (2012) (5–4 decision).
10 Citizens United v. Fed. Election Comm., 130 S. Ct. 876, 929 (2011).
11 See, e.g., Erwin Chemerinsky, High Court‟s Union Dues Case May Change the Political
Landscape,
A.B.A.
J.
(July
2,
2012),
http://www.abajournal.com/news/article/chemerinsky_high_courts_union_dues_case_may_cha
nge_the_political_landscape.
12 See, e.g., Cindy Galli et al., Supreme Court Decision Won‟t Stop Stolen Valor Supporters,
ABC NEWS (June 28, 2012), http://abcnews.go.com/Blotter/supreme-court-decision-stop-stolenvalor-supporters/story?id=16671826#.UJB2p4ap2Q4.
13 See Jeffery Barnum, Encouraging Congress to Encourage Speech: Reflections on U.S. v.
Alvarez, 76 ALB. L. REV. 527 (2013); Rodney Smolla, Categories, Tiers of Review, and the
Roiling Sea of Free Speech Doctrine and Principle: A Methodological Critique of United States
v. Alvarez, 76 ALB. L. REV. 499 (2013).
14 See Robert D. Richards & David J. Weinert, Punting in the First Amendment‟s Red Zone:
The Supreme Court‟s “Indecision” on the FCC‟s Indecency Regulations Leaves Broadcasters
Still Searching for Answers, 76 ALB. L. REV. 631 (2013).
15 See R. George Wright, Are There First Amendment “Vacuums?”: The Case of the Free
Speech Challenge to Tobacco Package Labeling Requirements, 76 ALB. L. REV. 613 (2013); R.J.
Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 1222 (D.C. Cir. 2012) (striking down on First
Amendment grounds nine graphic warnings proposed by the FDA re cigarette packaging by a
2-1 vote); see also Garrett Epps, Does Cigarette Marketing Count as Free Speech?, THE
ATLANTIC (Aug. 29, 2012), http://www.theatlantic.com/national/archive/2012/08/doescigarette-marketing-count-as-free-speech/261680 (―The hidden message of the [majority]
opinion—a message correctly deduced from much of the Roberts Court‘s First Amendment
jurisprudence—is that the Constitution requires us to live in a make-believe world, where, for
example, gross imbalances of wealth have no effect on political campaigns, and ‗smoking isn‘t
addictive‘ is as protected as ‗I pledge allegiance to the flag.‘‖).
8
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about restrictions on online advertising?16 Mindful of the Court‘s
ruling in Snyder v. Phelps17 and other cases,18 to what extent can
the government outlaw race-hate speech?19 What about certain
forms of political dissent or communications with people whom our
government deems dangerous to national security?20 And how does
current First Amendment law affect the way we think about the
question of academic freedom21—a question that has received
renewed attention in the scholarly literature recently.22 Finally,
two of the contributors return to an old question that retains
currency; it was one raised in Schenck v. United States,23 namely,
how does the law of conspiracy interact with the law of the First
Amendment?24 Such questions illustrate the scope and complexity
of the contributions to this issue of the Albany Law Review.
16 See Marvin Ammori & Luke Pelican, Media Diversity and Online Advertising, 76 ALB. L.
REV. 665 (2013).
17 Snyder v. Phelps, 131 S. Ct. 1207 (2011). Legislation has recently been introduced to
rein in the Snyder ruling. See Sanctity of Eternal Rest for Veterans Act of 2011, S. 815, 112th
Cong. (2011). The companion bill in the House is H.R. 1591, 112th Cong. (2011). The
proposed law would amend the federal criminal code concerning the prohibition on
disruptions of funerals of members or former members of the Armed Forces to increase the
period covered under such prohibition from one to two hours before and after a military
funeral. S. 815 § 3(a). Under the proposed law, it would be unlawful to cause any
disturbance or disruption within 500 feet of the residence of a surviving member of a
deceased‘s immediate family. Id. § 3(a)(2)(A). The measure provides civil remedies, including
actual and statutory damages. Id. § 4(b)–(d). It also makes identical changes under federal
veterans‘ provisions concerning the prohibition on certain demonstrations and disruptions at
national cemeteries, including Arlington National Cemetery. Id. § 4.
18 See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 379–80 (1992) (reviewing a city
ordinance that forbade offensive symbols); Nat‘l Socialist Party of Am. v. Vill. of Skokie, 432
U.S. 43, 43–44 (1977) (per curiam) (reversing a lower court‘s injunction that forbade various
actions connected with the National Socialist Party of America).
19 Robert O‘Neil, Hate Speech, Fighting Words, and Beyond—Why American Law is
Unique, 76 ALB. L. REV. 467 (2013).
20 See Marjorie Heins, The Supreme Court and Political Speech in the 21st Century: The
Implications of Holder v. Humanitarian Law Project, 76 ALB. L. REV. 561 (2013).
21 Owen Fiss, The Democratic Mission of the University, 76 ALB. L. REV. 735 (2013).
22 See ROBERT C. POST, DEMOCRACY, EXPERTISE, AND ACADEMIC FREEDOM 61–62 (2012)
(discussing the state of academic freedom today); Ronald K.L. Collins & David M. Skover,
Foreword: The Guardians of Knowledge in the Modern State: Post‟s Republic and the First
Amendment, 87 WASH. L. REV. 369, 369–70 (2012) (discussing Robert Post‘s book and the
relationship between the First Amendment and truth). The Post book was the subject of a
symposium in the Washington Law Review with commentaries by Thomas Ambro, Paul
Saifer, Joseph Blocker, Paul Horwitz, Bruce Johnson, Sarah Duran, and Stephen Vladeck
with a response to all of them from Dean Post. Id. at 549.
23 Schenck v. United States, 249 U.S. 47, 49, 51–53 (1919) (rejecting the defendants‘
arguments that distributing papers opposing the draft was protected by the First Amendment
rights of freedom of the press and freedom of speech).
24 See Martin H. Redish & Michael J. T. Downey, Criminal Conspiracy as Free Expression,
76 ALB. L. REV. 697 (2013).
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Though its free speech jurisprudence is still developing, the
twenty-nine First Amendment free expression cases handed down
by the Roberts Court25 tell us much about how the Court would view
the questions raised by the contributors in this symposium. One
tenet of that jurisprudence is especially important and worthy of
treatment in its own right. In that regard, in what follows I outline
a few preliminary ideas regarding that tenet of the Roberts Court‘s
jurisprudence and what it may portend for the future of our free
speech law, or at least parts of it. I refer to that tenet as the new
absolutism,26 by which I mean that line of cases in which the Court
has extended near absolute protection to expression for a particular
reason, about which I will say more shortly. To be sure, and as I
discuss in the conclusion, there are other cases in which the Roberts
Court has been quite parsimonious in its protection of free speech.27
Even granting that, there is nonetheless something remarkable in
how the Roberts Court has re-conceptualized the way we think
about certain free speech issues and has likewise reinvigorated a
measure of free speech liberty, albeit to the consternation of many.
How did this come to be? Well, the answer is a strange one: the
new absolutism has its roots in an old dictum designed to limit First
Amendment protection. Strange how the doctrinal phoenix rises
and reshapes itself, but such is the way of law in our times. Permit
me to explain.
See infra Appendix.
Such absolutism, as described in this Foreword, is confined to Chaplinsky-type cases
(i.e., regarding categories of exceptions to the First Amendment). Chaplinsky v. New
Hampshire, 568, 572 (1942). Of course, there is more to this new absolutism than what is
herein discussed. I consider that something more in my examination of ways of thinking
about the First Amendment that bear some resemblance to the kind of free speech absolutism
championed by Floyd Abrams in his many years of litigating free expression cases. See
RONALD COLLINS, NUANCED ABSOLUTISM: FLOYD ABRAMS AND THE FIRST AMENDMENT (2013).
27 See infra Appendix; Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2712 (2010)
(upholding material support for terrorist organizations law over First Amendment
challenges); Morse v. Frederick, 551 U.S. 393, 397 (2007) (limiting students‘ free speech
rights at schools); Garcetti v. Ceballos, 547 U.S. 410, 426 (2006) (limiting the scope of
government employees‘ free speech). See generally Adam Liptak, Study Challenges Supreme
Court‟s Image as Defender of Free Speech, N.Y. TIMES, Jan. 8, 2012, at 25 (discussing the
Robert‘s Court‘s record on free speech); Monica Youn, The Roberts Court‟s Free Speech Double
Standard, AM. CONSTITUTION SOC‘Y BLOG (Nov. 29, 2011), http://www.acslaw.org/acsblog/theroberts-court‘s-free-speech-double-standard (analyzing the Robert‘s Court‘s free speech
record).
25
26
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AN OLD DICTUM IN NEW CLOTHES
It‘s a true story, but who would have believed it? Absolutism is
coming back into vogue, though not the old, battered and
purportedly comprehensive absolutism once touted by Justice Hugo
Black.28 This new absolutism came about, by and large,29 by
lawyers and jurists looking back in time to something said by a
largely forgotten jurist (Justice Frank W. Murphy)30 in an opinion
he wrote, one that was long frowned upon in the First Amendment
community.31 I refer, of course, to Justice Murphy‘s seminal opinion
28 See, e.g., HUGO LAFAYETTE BLACK, A CONSTITUTIONAL FAITH 45 (1968); Hugo L. Black,
The Bill of Rights, 35 N.Y.U. L. REV. 865, 874–75 (1960); see also HOWARD BALL, HUGO L.
BLACK: COLD STEEL WARRIOR 188–200 (1996) (listing and discussing Black‘s First
Amendment absolutist opinions); JAMES J. MAGEE, MR. JUSTICE BLACK: ABSOLUTIST ON THE
COURT 5 (1980) (discussing the legacy of Black‘s First Amendment absolutism). Professor
Charles Black argued as persuasively as possible in defense of Black‘s absolutist views. See
Charles L. Black, Jr., Mr. Justice Black, the Supreme Court and the Bill of Rights, HARPER‘S,
Feb. 1961, 63, 63 (discussing Justice Black‘s absolutism). See generally 1 SMOLLA, supra note
1, § 2:47–2:54 (discussing and critiquing free speech absolutism). For a categorical rejection
of textual absolutism in this area, see 3 JOSEPH STORY, COMMENTARIES ON THE
CONSTITUTION OF THE UNITED STATES, at 731–32 (Fred B. Rothman & Co. 1991) (1833),
denying any ―absolute right to speak, or write, or print, whatever he might please,‖ and
ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF
POLITICS 92–93 (1962), referring to Black‘s First Amendment absolutism as an ―illusion.‖
29 My discussion of the new absolutism is, of course, duly mindful of the important and key
role played by the overbreadth, void for vagueness, and content discrimination doctrines in
vindicating free expression claims. Those doctrines often work in tandem with the new
absolutism. Regarding the important topic of content discrimination, see Elena Kagan,
Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment
Doctrine, 63 U. CHI. L. REV. 413, 443 (1996), noting that ―[t]he distinction between contentbased and content-neutral regulations of speech serves as the keystone of First Amendment
law‖, and Joseph Blocher, Viewpoint Neutrality and Government Speech, 52 B.C. L. REV. 695,
702 (2011), which notes that ―[a]lthough there is very little agreement about the core
‗purpose‘ of the First Amendment, there is near unanimity that one such purpose—and
certainly a core function—is to protect private viewpoints from government regulation. Thus
the Amendment flatly prohibits the government from engaging in viewpoint discrimination,
even within classes of speech that could otherwise be completely proscribed.‖ (citations
omitted).
30 For the most part, Frank Murphy was a real progressive.
For example, Murphy
―established the first civil liberties unit in the Justice Department‖ while he was Attorney
General. Eugene Gressman, Frank Murphy, in THE YALE BIOGRAPHICAL DICTIONARY OF
AMERICAN LAW 394, 394 (Roger K. Newman ed., 2009). Murphy also registered a courageous
dissent in Korematsu v. United States, 323 U.S. 214, 233 (1944) (Murphy, J., dissenting)
(―This exclusion of ‗all persons of Japanese ancestry, both alien and non-alien,‘ from the
Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be
approved. Such exclusion goes over ‗the very brink of constitutional power‘ and falls into the
ugly abyss of racism.‖).
31 See 1 SMOLLA, supra note 1, § 3.04[2][a] (deeming Chaplinsky‘s approach ―outdated‖); see
also John F. Wirenius, The Road Not Taken: The Curse of Chaplinsky, 24 CAP. U. L. REV. 331,
339 (1995) (tracing the history of Chaplinsky).
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in Chaplinsky v. New Hampshire,32 wherein the Court rejected First
Amendment absolutism.33 Here (yet again) is the infamous passage
from Murphy‘s 1942 opinion for the Court:
Allowing the broadest scope to the language and purpose
of the Fourteenth Amendment, it is well understood that the
right of free speech is not absolute at all times and under all
circumstances. There are certain well-defined and narrowly
limited classes of speech, the prevention and punishment of
which have never been thought to raise any Constitutional
problem. These include the lewd and obscene, the profane,
the libelous, and the insulting or ―fighting‖ words—those
which by their very utterance inflict injury or tend to incite
an immediate breach of the peace. It has been well observed
that such utterances are no essential part of any exposition
of ideas, and are of such slight social value as a step to truth
that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.34
Incredibly, Justice Murphy‘s ―casual dictum became the
32 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). The case was argued by Hayden
Covington, the appellate counsel for the Jehovah‘s Witnesses. Id. at 568. Covington had
argued many First Amendment cases in the High Court, including Cantwell v. Connecticut,
310 U.S. 296 (1940), W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), and Marsh v.
Alabama, 326 U.S. 501 (1946). Between 1938 and 1955, he prevailed in thirty-six of the fortyfive cases he took to the Supreme Court. See Shawn Francis Peters, Hayden Covington, in
THE YALE BIOGRAPHICAL DICTIONARY OF AMERICAN LAW 131, 131–32 (Roger K. Newman ed.,
2009). See also John R. Vile, Hayden C. Covington, in 1 ENCYCLOPEDIA OF THE FIRST
AMENDMENT 353, 353 (John R. Vile et al. eds., 2009). In commenting on the factual posture
of the case, the late professor Walter Murphy noted:
The Chaplinsky case was the first Jehovah‘s Witness controversy decided by the Court
during Jackson‘s tenure, and its overtones could scarcely have impressed the new [and
very Catholic] Justice with the righteousness of the Witnesses‘ cause. The excesses of
[Walter] Chaplinsky may have made it easier for Jackson to remark in a later case ―that
the singular persistence of the turmoil about Jehovah‘s Witnesses, one which seems to
result from the work of no other sect, would suggest to this Court a thorough
examination of their methods to see if they impinge unduly on the rights of others.‖
Walter F. Murphy, Mr. Justice Jackson, Free Speech, and the Judicial Function, 12 VAND. L.
REV. 1019, 1025–26 (1959) (quoting Douglas v. City of Jeannette, 319 U.S. 157, 181 (1943)
(Jackson, J., concurring in the result)). ―The only nonunanimous decision involving Jehovah‘s
Witnesses in which Jackson voted for the Witnesses was West Virginia State B[oard] of
Educ[ation] v. Barnette.‖ Murphy, supra, at 1026 n.29. Professor Murphy, however,
overlooked Justice Murphy‘s vote and concurrence in another Witnesses‘ case, Martin v. City
of Struthers. 319 U.S. 141, 149 (1943) (Murphy, J., concurring) (striking down a local
ordinance that prohibited any person from distributing handbills, circulars or other
advertisements to ring the doorbell of a private home, by a 5–4 vote).
33 Chaplinsky, 315 U.S. at 571.
34 Id. at 571–72 (footnotes omitted).
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constitutional orthodoxy‖35 of First Amendment law and has
remained so for decades afterwards. More importantly, it ―provided
a First Amendment technique, categorization, so influential that it
continues to rival the clear-and-present-danger test today.‖36 For
Harry Kalven, as with other defenders of free speech, that
―unfortunate‖ and ―broad dictum . . . haunted constitutional law.‖37
Perhaps that explains why, as late ―as June of 1992 the Court was
still describing the Chaplinsky approach as operative only in ‗a few
limited areas.‘‖38 Two years later, Professor Rodney Smolla labeled
the Chaplinsky dictum as ―mechanical and conclusory.‖39
Predictably, that dictum came to be ―largely . . . discredited and
abandoned.‖40 Or as Terry Eastland put it: ―[t]ime has weathered
the two-tier theory.‖41 But nothing endures quite like change, and
as we will soon see, Chaplinsky‘s two-level theory of the First
Amendment has regained some of its doctrinal staying power, albeit
of a different kind, and used for different purposes.
Before proceeding further, it is useful to note something
significant when considering Chaplinsky‘s two-level theory of First
Amendment analysis.42 That is, it is important to bear in mind that
35 Wirenius, supra note 31, at 342.
See Martin, 319 U.S. at 155 (Reed, J., dissenting)
(―Freedom to distribute publications is obviously a part of the general freedom guaranteed the
expression of ideas by the First Amendment. It is trite to say that this freedom of expression
is not unlimited. Obscenity, disloyalty and provocatives do not come within its protection.‖)
(emphasis added); Winters v. New York, 333 U.S. 507, 510 (1948) (repeating Chaplinsky‘s
categories).
36 WILLIAM M. WIECEK, 12 THE BIRTH OF THE MODERN CONSTITUTION: THE UNITED STATES
SUPREME COURT, 1941–1953, at 160 (2006).
37 HARRY KALVEN, JR., A WORTHY TRADITION: FREEDOM OF SPEECH IN AMERICA 18 (Jamie
Kalven ed., 1988). Kalven added, ―[d]oubtless, Justice Murphy,‖ who was otherwise liberal on
free speech issues, ―would have been appalled, had he been confronted with an effort to apply
his general premise outside the context of [the facts of the case:] an immediate threat to
order.‖ Id.
38 Jeffrey M. Shaman, The Theory of Low-Value Speech, 48 SMU L. REV. 297, 303 (1995)
(quoting R.A.V. v. City of St. Paul, 505 U. S. 377, 382–83).
39 1 SMOLLA, supra note 1, § 3.04[2][a].
40 Id. One commentator has observed:
Serious questions also exist about the basic validity of the low-value speech theory.
Constitutional scholars have said that it is a theory at odds with fundamental First
Amendment principles, that the government has no business evaluating the content of
speech and may regulate speech only when it is the cause of serious harm.
Shaman, supra note 38, at 300 (footnotes omitted).
41 FREEDOM OF EXPRESSION IN THE SUPREME COURT: THE DEFINING CASES 54 (Terry
Eastland ed., 2000).
42 In a perceptive article, Michael Coenen has recently observed: ―First Amendment
litigation tends to proceed as a winner-take-all affair. Speech is either protected, in which
case it may not be punished, or unprotected, in which case it may be punished to a very great
degree. In this respect, the standard method of First Amendment analysis is penalty-
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Justice Murphy‘s dictum consisted of two separate prongs. The first
prong—what I refer to as the categories prong—consists of the
specific categories of unprotected speech as set out by the
Chaplinsky Court43:
(1)
(2)
(3)
(4)
(5)
lewd expression;44
obscene expression;45
profane expression;46
libelous expression;47 and
fighting words.48
Beyond the above five categories listed in Chaplinsky, there are at
neutral.‖ Michael Coenen, Of Speech and Sanctions: Toward a Penalty-Sensitive Approach to
the First Amendment, 112 COLUM. L. REV. 991, 994 (2012) (footnote omitted).
43 See DAVID M. O‘BRIEN, CONGRESS SHALL MAKE NO LAW: THE FIRST AMENDMENT,
UNPROTECTED EXPRESSION, AND THE SUPREME COURT 11 (2010). Commercial speech was also
unprotected at the time Chaplinsky was handed down. See Valentine v. Chrestensen, 316
U.S. 52, 54 (1942). But see Bigelow v. Virginia, 421 U.S. 809, 819, 825–26 (1975) (holding
that newspaper editor‘s First Amendment rights were infringed by Virginia statute even
though a commercial advertisement was involved); Va. State Bd. of Pharmacy v. Va. Citizens
Consumer Council, Inc., 425 U.S. 748, 760, 770 (1976) (concluding that commercial speech is
protected). Likewise, at the time of the Chaplinsky ruling, cinematic movies were not
protected under the First Amendment. See Mut. Film Corp. v. Indus. Comm‘n of Ohio, 236
U.S. 230, 244–45 (1915), overruled by Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502
(1952).
44 Cf. Reno v. ACLU, 521 U.S. 844, 858–59, 885 (1997) (striking down two provisions of the
Communications Decency Act of 1996).
45 See Miller v. California, 413 U.S. 15, 25 (1973) (providing examples of what could be
considered ―obscene‖ and thus regulated by the states).
46 But see Lucas v. Arkansas, 416 U.S. 919, 919 (1974) (vacating judgment that upheld
conviction for use of profane and hostile language); Gooding v. Wilson, 405 U.S. 518, 526, 528
(1972) (quoting Elmore v. State, 83 S.E. 799, 799–800 (Ga. Ct. App. 1914)) (striking down
―‗opprobrious [words] or abusive language‘‖ law on vagueness and overbreadth grounds);
Cohen v. California, 403 U.S. 15, 26 (1971) (upholding First Amendment right to wear jacket
with profane message in public place).
47 See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269 (1964) (footnotes omitted) (―Like
insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation
of legal business, and the various other formulae for the repression of expression that have
been challenged in this Court, libel can claim no talismanic immunity from constitutional
limitations. It must be measured by standards that satisfy the First Amendment.‖). There is
also the matter of trade libel. See, e.g., Unelko Corp. v. Rooney, 912 F.2d 1049, 1058 (9th Cir.
1990) (holding that the tort of trade libel is constitutional provided there is ―actual malice‖).
48 Compare R.A.V. v. City of St. Paul, 505 U.S. 377, 388–89 (1992) (prohibiting a city
ordinance from placing restrictions on individuals with objectionable views), with Cohen, 403
U.S. at 16, 20 (limiting Chaplinsky‘s definition of ―fighting words‖ to face-to-face verbal
challenges likely to provoke an instant breach of peace, in the course of reversing a conviction
for wearing the words ―Fuck the Draft‖ on a jacket in a Los Angeles courthouse corridor).
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least forty-three other additional types49 of unprotected expression:
(1) blackmail;50
(2) bribery;51
(3) misleading or fraudulent commercial expression;52
(4) incitement to lawless action;53
(5) expression that violates an intellectual property right;54
(6) criminal conspiracy expression;55
(7) threatening expressions;56
(8) expression that endangers national security;57
(9) insider trading expression;58
(10) perjurous expression;59
(11) harassment-in-the-workplace expression;60
49 To be clear, a category of speech may include within it several kinds or types of speech,
all of which might loosely be categorized under a single topic. But in the end, this may prove
to be of little real practical moment. For consider: does it make much real difference if the
forty some exceptions are tagged categories or types? This speaks to Professor William
Wiecek‘s point, namely, that ―Chaplinsky[‘s] categories tend not only to multiply but to
bifurcate, as well.‖ WIECEK, supra note 36, at 166. See generally Frederick Schauer, The
Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience,
117 HARV. L. REV. 1765, 1783–85 (2004) (exploring the absence of First Amendment issues in
a variety of subject areas); Frederick Schauer, Categories and the First Amendment: A Play in
Three Acts, 34 VAND. L. REV. 265, 265–66 (1981) (analyzing the three different categorizations
prevalent in First Amendment doctrine). I gladly acknowledge my partial reliance in what
follows on the informative amicus brief filed by Professors Eugene Volokh and James
Weinstein in United States v. Alvarez. Brief of Professors Eugene Volokh & James Weinstein
as Amici Curiae Supporting Petitioner, United States v. Alvarez, 132 S. Ct. 2537 (2011) (No.
11-210) [hereinafter Volokh & Weinstein Brief].
50 See Comment, Coercion, Blackmail, and the Limits of Protected Speech, 131 U. PA. L.
REV. 1469, 1477–78 (1983).
51 THE OFFENSIVE INTERNET: PRIVACY, SPEECH, AND REPUTATION 6 (Saul Levmore &
Martha C. Nussbaum eds., 2010).
52 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm‘n of N.Y., 447 U.S. 557, 566 (1980);
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976).
53 Brandenburg v. Ohio, 395 U.S. 444, 447–48 (1969) (per curiam).
54 See Eldred v. Ashcroft, 537 U.S. 186, 217 (2003); Harper & Row, Publishers, Inc. v.
Nation Enters., 471 U.S. 539, 557–58 (1985).
55 See KEITH WERHAN, FREEDOM OF SPEECH: A REFERENCE GUIDE TO THE UNITED STATES
CONSTITUTION 59 (2004).
56 Virginia v. Black, 538 U.S. 343, 368 (2003) (Stevens, J., concurring); Watts v. United
States, 394 U.S. 705, 707 (1969) (per curiam). See also Mark Strasser, Advocacy, True
Threats, and the First Amendment, 38 HASTINGS CONST. L.Q. 339, 340 (2011) (explaining the
difficulties lower courts face in determining what type of speech the Supreme Court would
―characterize[] as both advocating and threatening,‖ and thus be unprotected speech).
57 See N.Y. Times Co. v. United States, 403 U.S. 713, 737–40 (1971) (White, J., concurring).
58 Nicholas Wolfson, The First Amendment and the SEC, 20 CONN. L. REV. 265, 296 (1988).
59 See TAMARA R. PIETY, BRANDISHING THE FIRST AMENDMENT: COMMERCIAL EXPRESSION
IN AMERICA 55 (2012); WERHAN, supra note 55, at 70.
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(12) expression in contempt of court;61
(13) plagiaristic expression;62
(14) criminal solicitation (e.g., prostitution or murder for hire);63
(15) child pornography;64
(16) speech that amounts to bullying;65
(17) intentionally false speech likely to create a dangerous public
panic;66
(18) intentionally misrepresenting oneself as a government
official;67
(19) intentionally false statements made to voters concerning
authorship or endorsement of political campaign materials;68
(20) certain kinds of intentionally false statements made by a
candidate in an election campaign;69
(21) certain kinds of prisoner expression;70
60 Suzanne
Sangree, Title VII Prohibitions Against Hostile Environment Sexual
Harassment and the First Amendment: No Collision in Sight, 47 RUTGERS L. REV. 461, 465
(1995).
61 Toledo Newspaper Co. v. United States, 247 U.S. 402, 414, 421 (1918); cf. Wood v.
Georgia, 370 U.S. 375, 396 (1962) (Harlan, J., dissenting) (citing Patterson v. Colorado, 205
U.S. 454, 462 (1907)).
62 See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 565 (1985).
63 See WERHAN, supra note 55, at 66, 75.
64 New York v. Ferber, 458 U.S. 747, 754, 763 (1982) (noting support for upholding a New
York child pornography law) (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72
(1942)).
65 See,
e.g.,
Policies
&
Laws,
STOPBULLYING.GOV,
http://www.stopbullying.gov/laws/index.html (last visited Jan. 23, 2013) (providing
information on anti-bullying laws by state).
66 See, e.g., United States v. Brahm, 520 F. Supp. 2d 619, 621–22, 626 (D.N.J. 2007)
(upholding 18 U.S.C. § 1038(a)(1) (2006) against a constitutional challenge regarding posting
a false message on the Internet about purported detonation of explosive devices in targeted
cities).
67 See, e.g., 18 U.S.C. § 912 (2006) (prohibiting the impersonation of federal officials).
68 See, e.g., United We Stand Am., Inc. v. United We Stand, Am. N.Y., Inc., 128 F.3d 86, 93
(2d Cir. 1997) (explaining that there is no First Amendment right to confuse voters using
false statements in campaign materials).
69 See, e.g., Treasurer of the Comm. to Elect Gerald D. Lostracco v. Fox, 389 N.W.2d 446,
449 (Mich. Ct. App. 1986) (rejecting First Amendment challenge regarding false claims made
in an advertisement that candidate was the incumbent).
70 See Beard v. Banks, 548 U.S. 521, 528 (2006). As Justice Breyer noted in Beard: while
―imprisonment does not automatically deprive a prisoner of certain important constitutional
protections, . . . the Constitution sometimes permits greater restriction of such rights in a
prison than it would allow elsewhere. . . . [C]ourts owe ‗substantial deference to the
professional judgment of prison administrators.‘‖ Id. (quoting Overton v. Bazzetta, 539 U.S.
126, 132 (2003)). Here, the level of judicial scrutiny is so low as to make the First
Amendment ―right‖ almost meaningless. See, e.g., Turner v. Safley, 482 U.S. 78, 89 (1987)
(―[W]hen a prison regulation impinges on inmates‘ constitutional rights, the regulation is
valid if it is reasonably related to legitimate penological interests.‖). To my knowledge, the
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(22) certain kinds of government employee expression;71
(23) certain kinds of government-funded expression;72
(24) certain kinds of student expression;73
(25) certain kinds of expression by those in the military;74
(26) expression deemed secret, owing to a private contract or a
government regulation or law;75
(27) expression that unfairly places another in a false light;76
(28) intentional expression that causes emotional distress;77
(29) expression in violation of anti-trust laws;78
(30) expression that causes prejudicial publicity that interferes
with a fair trial;79
Court has never sustained a prisoner‘s free speech rights claim (as distinguished from a
religious claim) under the First Amendment. See Overton, 539 U.S. at 131 (―The very object
of imprisonment is confinement. Many of the liberties and privileges enjoyed by other
citizens must be surrendered by the prisoner. An inmate does not retain rights inconsistent
with proper incarceration.‖).
71 Garcetti v. Ceballos, 547 U.S. 410, 421 (2006) (holding that a deputy district attorney‘s
statements in a memorandum to his superiors were made pursuant to his official duties as a
prosecutor and thus were not protected under the First Amendment).
72 See Nat‘l Endowment for the Arts v. Finley, 524 U.S. 569, 583, 587–88, 590 (1998)
(holding that the statute governing the award of federal grant money to support the arts, and
its requirement that general standards of ―decency and respect‖ be taken into consideration,
did not violate the First Amendment).
73 Morse v. Frederick, 551 U.S. 393, 406 (2007) (concluding that students‘ First
Amendment rights are more limited and are put in the context of proper school
administration); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986) (concluding that
a school could constitutionally punish a student-delivered sexually charged monologue which
contained vulgar and lewd speech as undermining the school‘s mission in furthering strong
civility in the student body).
74 Brown v. Glines, 444 U.S. 348, 354 (1980) (holding a U.S. Air Force regulation that
restricted the circulation of petitions on air force bases as protecting a substantial
governmental interest and thus not infringing upon the First Amendment); Parker v. Levy,
417 U.S. 733, 758 (1974) (holding that articles of the Uniform Code of Military Justice which
permitted court martial for unbecoming conduct did not violate the First Amendment, in part,
because of the unique needs of ensuring obedience and discipline within the military).
75 See United States v. Aguilar, 515 U.S. 593, 605 (1995) (upholding a statute prohibiting
dissemination of wiretaps against a First Amendment challenge)
76 Time, Inc. v. Hill, 385 U.S. 374, 389–90 (1967) (holding that the First Amendment does
not shield calculated falsehoods from liability, in damages arising out of a New York right of
privacy statute).
77 Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 48, 56 (1988) (declining to uphold tort
liability for infliction of emotional distress arising from a pornographic parody of Reverend
Jerry Falwell by Larry Flynt and Hustler Magazine as Flynt failed to show actual malice).
78 Lorain Journal Co. v. United States, 342 U.S. 143, 155–56 (1951); see Citizen Publ‘g Co.
v. United States, 394 U.S. 131, 139 (1969) (holding that a private agreement between two
newspaper companies that had the effect of restraining competition did not enjoy First
Amendment protection).
79 See Sheppard v. Maxwell, 384 U.S. 333, 350–51 (1966). But see Richmond Newspapers,
Inc. v. Virginia, 448 U.S. 555, 576 (1980) (explaining that the First Amendment prohibits the
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(31) intentionally disclosing the identity of secret government
agents;80
(32) certain kinds of expression that invade the privacy of
another;81
(33) certain kinds of expression limited by time, place, and
manner restrictions;82
(34) certain kinds of expression that involve intentional lying;83
(35) certain kinds of expression by sitting judges;84
(36) certain kinds of expression aired on the public airwaves;85
(37) certain kinds of panhandling;86
(38) certain kinds of telemarketing;87
(39) certain kinds of speech harmful to minors;88
(40) certain kinds of commercial solicitation (e.g., lawyers
soliciting business);89
(41) certain kinds of expression concerning the unauthorized
practice of some licensed profession (e.g., medicine or law);90
(42) certain kinds of intentional lying to government officials (e.g.,
government ―from summarily closing courtroom doors . . . to the public,‖ which would
otherwise ―eviscerate[]‖ the freedom of the press).
80 Robert W. Bivins, Note, Silencing the Name Droppers: The Intelligence Identities
Protection Act of 1982, 36 U. FLA. L. REV. 841, 846 n.38, 855 (1984).
81 See Alfred Hill, Defamation and Privacy Under the First Amendment, 76 COLUM. L. REV.
1205, 1273 (1976); Alice Marie Beard, The Right to Privacy vs. The First Amendment: Is a
Private Person Protected Against the Publicizing of His Private Facts? (1974) (unpublished
essay, University of Maryland), available at http://alicemariebeard.com/law/privacy.htm (last
visited Jan. 23, 2013).
82 Hill v. Colorado, 530 U.S. 703, 725, 730 (2000).
83 See, e.g., Volokh & Weinstein Brief, supra note 49, at 2–11 (listing varieties of
intentional lying regulated by various federal and state laws).
84 See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 886–87 (2009).
85 See FCC v. Pacifica Found., 438 U.S. 726, 746 (1978) (quoting Chaplinsky in the course
of upholding FCC sanctions against a radio broadcaster for airing comedian George Carlin‘s
infamous ―Filthy Words‖ monologue); id. at 750–51 (Stevens, J., plurality opinion) (finding
that radio was uniquely accessible to children and as such, the sanction was valid).
86 Gresham v. Peterson, 225 F.3d 899, 903, 905–07 (7th Cir. 2000); Smith v. City of Fort
Lauderdale, 177 F.3d 954, 955–56 (11th Cir. 1999).
87 See Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 618–19, 623–24
(2003).
88 Ginsberg v. New York, 390 U.S. 629, 635, 641–43 (1968).
89 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm‘n of N.Y., 447 U.S. 557, 563–66
(1980).
90 See Bhd. of R.R. Trainmen v. Virginia ex rel. Va. State Bar, 377 U.S. 1, 6 n.10 (1964)
(noting that a state has broad powers to regulate the unauthorized practice of law,
notwithstanding a First Amendment challenge, though ruling that the restriction at issue
was unconstitutionally broad).
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lying to Congress while under oath, or false police reports);91
and
(43) certain kinds of evidence introduced into court and incourtroom expression governed by the rules of evidence.92
Since the Chaplinsky Court considered its five categories to be
illustrative,93 there remains the real possibility that some or all of
the forty-three examples listed above will come into the sunlight of
their own doctrinal illumination.94
The second level of Chaplinsky—what I refer to as the low-value
speech prong—was premised less on particular categories of speech
than on the value of the expression in question.95 By that measure,
and given what Justice Murphy wrote, unprotected speech was any
kind of expression that either is (i) unessential to the exposition of
ideas or (ii) expression that has little instrumental value in
pursuing truth.96 If a certain kind of speech lacked such normative
values,97 then it could easily be added to any list of unprotected
speech. Traces of this line of thinking appeared during Justice
Sonia Sotomayor‘s exchange with Solicitor General Donald B.
Verrilli in Alvarez.98 At one point in that argument, Justice
Sotomayor stated: ―That there are no circumstances in which this
91 See, e.g., State v. Bailey, 644 N.E.2d 314, 317, 318 (Ohio 1994) (holding that lying to a
police officer in order to interfere with the officer‘s attempt to apprehend a criminal
constitutes obstruction of justice).
92 In re Williams, 414 N.W.2d 394, 397 (Minn. 1987).
93 See Chaplinsky, 315 U.S. at 572 (utilizing the word ―include‖ to describe classes of
speech).
94 I will say a bit more about this when I discuss Justice Kennedy‘s plurality opinion in
United States v. Alvarez. See infra text accompanying note 225.
95 Chaplinsky, 315 U.S. at 572.
96 Justice Antonin Scalia drew on this prong in his majority opinion in R.A.V.:
From 1791 to the present, however, our society, like other free but civilized societies, has
permitted restrictions upon the content of speech in a few limited areas, which are ―of
such slight social value as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and morality.‖
R.A.V. v. City of St. Paul, 505 U.S. 377, 382–83 (1992) (quoting Chaplinsky, 315 U.S. at 572).
97 Consider Justice Edwin L. Page‘s dictum in State v. Chaplinsky: ―The fundamental basis
of the constitutional rule is the necessity for full and free discussion of all subjects which
affect ways of life, including religious, social and governmental questions. This is ‗essential to
the very existence and perpetuity of free government.‘‖ State v. Chaplinsky, 18 A.2d 754, 759
(N.H. 1941) (quoting THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS
WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 596
(University Press, 7th ed. 1903) (1896)).
98 Transcript of Oral Argument at 4, United States v. Alvarez, 132 S. Ct. 2537 (2012) (No.
11-210), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/11210.pdf.
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speech has value. . . . I believe that‘s your bottom line.‖99 To which
General Verrilli replied: ―[T]his Court has said in numerous
contexts . . . that the calculated factual falsehood has no First
Amendment value for its own sake.‖100 Later in the argument,
during an exchange between Chief Justice John Roberts and
Jonathan Libby (counsel for Mr. Alvarez), the Chief Justice asked:
―What is . . . the First Amendment value in a lie, a pure lie?‖101 To
which Mr. Libby replied (though not by way of the most persuasive
of answers): ―Just a pure lie? There can be a number of values.
There‘s the value of personal autonomy.‖102
If the value prong is indeed the jurisprudential touchstone, then
it matters not whether a certain kind of expression was or was not
historically exempted from First Amendment coverage, provided
that such expression is of low value (i.e., unimportant to the
exposition of ideas or to the pursuit of truth).103 While Chaplinsky‘s
two prongs could work in tandem, they need not so. For example,
employing the low value speech prong, one might reasonably argue
that crush-video expression of the kind discussed in Stevens104 is
worthless in light of the norms articulated in Chaplinsky.105 In
other words, Chaplinsky‘s second prong can readily cannibalize its
first prong.
As we will see in what follows, the Roberts Court has, on the one
hand, slightly expanded the list of Chaplinsky‘s stated categories of
unprotected expression.106 On the other hand, that same Court has
shown no signs of moving away from the jurisprudence of its
predecessors in diminishing the domain of Chaplinsky‘s original
exceptions. (For example, pre-Roberts Courts have held that
Id.
Id. at 5.
101 Id. at 27.
102 Id.
103 See Rodney A. Smolla, Words “Which by Their Very Utterance Inflict Injury”: The
Evolving Treatment of Inherently Dangerous Speech in Free Speech Law and Theory, 36 PEPP.
L. REV. 317, 358 (2009). Regarding the Chaplinsky opinion, Smolla wrote:
I wish to isolate Justice Murphy‘s theoretical justification that such words may be
banished from society because such classes of expression are ―of such slight social value
as a step to truth that any benefit that may be derived from them is clearly outweighed
by the social interest in order and morality.‖
Id. at 318 (quoting Chaplinsky, 315 U.S. at 572).
104 United States v. Stevens, 130 S. Ct. 1577, 1583 (2010).
105 See Chaplinsky, 315 U.S. at 571–72.
106 See supra note 48 and accompanying text.
99
100
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defamation is not entirely unprotected,107 and lewd and profane
speech is sometimes protected.108) Moreover, the current Court has
generally declined to expressly invoke Chaplinsky‘s low-value
speech prong as a rationale for enlarging the realm of unprotected
expression.109 In fact, the Court seems to have moved in the
opposite conceptual direction. Simply consider what Justice John
Paul Stevens said for a unanimous Court in Meyer v. Grant110: ―The
First Amendment is a value-free provision whose protection is not
dependent on the truth, popularity, or social utility of the ideas and
beliefs which are offered.‖111 The result of that line of thinking has
produced a sea of change in how Chaplinsky is used and how we
perceive it. While some earlier Courts relied on Chaplinsky‘s twolevel theory to cabin free speech protection,112 the Roberts Court has
sometimes taken an entirely different approach, one that expands
the domain of protected speech.113 In doing so, it has produced an
exceptional kind of freedom in which certain kinds of speech are
sometimes categorically protected unless they are among the
designated kinds of expression definitely exempted from First
Amendment protection.
EXCEPTIONAL FREEDOM: FOUR ROBERTS COURT CASES
Years after many proclaimed the demise of the Chaplinsky
dictum, Patricia Millett, an exceptionally skilled appellate lawyer114
See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269 (1964).
See Reno v. ACLU, 521 U.S. 844, 849, 874–75, 885 (1997) (striking down two provisions
of the Communications Decency Act of 1996 while stating that at times, lewd behavior may be
proscribed, especially where children have likely access).
109 See Nicole B. Cásarez, Public Forums, Selective Subsidies, and Shifting Standards of
Viewpoint Discrimination, 64 ALB. L. REV. 501, 517–18 (2000).
110 Meyer v. Grant, 486 U.S. 414 (1988).
111 Id. at 419 (quoting Grant v. Meyer, 828 F.2d 1446, 1455 (10th Cir. 1987)) (internal
quotation marks omitted).
112 See, e.g., Roth v. United States, 354 U.S. 476, 484–85 (1957) (discussing obscenity as
historically not protected under freedoms of speech and press as being without social value, as
opposed to unorthodox, controversial ideas).
113 See, e.g., the cases discussed in the next section of this Foreword.
114 Ms. Millett has argued some thirty-one cases before the U.S. Supreme Court (the most
of any woman in history) and approximately thirty-six in the federal courts of appeals.
Patricia
Ann
Millett,
AKIN
GUMP
STRAUSS
HAUER
&
FELD
LLP,
http://www.akingump.com/pmillett (last visited Nov. 9, 2012). ―She has briefed scores of
cases in the Supreme Court and appellate courts across the nation.‖ Id. From August 1996
to September 2007, Ms. Millett served as an Assistant to the Solicitor General in the Office of
the Solicitor General at the U.S. Department of Justice, in Washington, D.C. Id. For a
sampling of her views on the First Amendment and the Roberts Court, see Patricia Millett et
107
108
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with Akin Gump Strauss Hauer and Feld,115 revisited that dictum,
but did so to advance her First Amendment arguments in
Stevens.116 In her merits brief, Ms. Millett argued117 that the
government ran afoul of the First Amendment when it enacted an
animal crush video law and engaged in content discrimination.118
Taking exception to the government‘s argument,119 Millett began by
arguing that ―Congress [c]annot [c]reate [c]ategories [o]f
[u]nprotected [s]peech [t]hrough [a]d [h]oc [b]alancing.‖120 ―If the
First Amendment meant to permit such a balancing test, then the
First Amendment would read more like the Fourth Amendment,
proscribing only ‗unreasonable‘ prohibitions on speech.‖121 And
then, to expand her argument for robust free speech protection, Ms.
Millett drew on R.A.V. v. City of St. Paul122 and noted that ―the
constraints of history and tradition explain why, ‗since the 1960‘s,‘
this Court has steadily ‗limited‘ and ‗narrowed the scope of the
traditional categorical exceptions.‘‖123 That is, the Chaplinsky
categories of unprotected speech had ―gotten narrower, not
broader,‖124 she argued. Not only had the Chaplinsky dictum come
to be severely confined, it had come to be seen as a bar to prevent
Congress from ―writ[ing] itself out of the First Amendment‘s
prohibition‖125 against abridging speech except in a narrowly
defined class of specified exceptions.126
al., Mixed Signals: The Roberts Court and Free Speech in the 2009 Term, 5 CHARLESTON L.
REV. 1, 38–39 (2010).
115 Ms. Millett heads Akin Gump‘s Supreme Court practice and co-heads the firm‘s
national appellate practice. Patricia Ann Millett, supra note 114.
116 United States v. Stevens, 130 S. Ct. 1577, 1582 (2010).
117 Brief for the Respondent, Stevens, 130 S. Ct. 1577 (No. 08-769). Thomas Goldstein, who
was then at Akin Gump Strauss Hauer & Feld LLP, was also on the brief. Id.
118 Id. at 38, 41. See 18 U.S.C. § 48 (2006), the ―animal crush videos‖ statute that was
struck down by the Court in Stevens as unconstitutionally overbroad and in violation of the
First Amendment. Stevens, 130 S. Ct. at 1592.
119 Elena Kagan, then Solicitor General, had helped draft the government‘s brief in
Stevens, and her name appeared on that brief. Brief for the United States at 49, Stevens, 130
S. Ct. 1577 (No. 08-769). Neal Katyal, then Deputy Solicitor General, argued the case for the
government. Transcript of Oral Argument at 1, Stevens, 130 S. Ct. 1577 (No. 08-769)
[hereinafter
Transcript
of
Oral
Argument
for
Stevens],
available
at
http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-769.pdf.
120 Brief for the Respondent, supra note 117, at 14.
121 Id. (quoting U.S. CONST. amend. IV).
122 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
123 Brief for the Respondent, supra note 117, at 16 (quoting R.A.V., 505 U.S. at 383).
124 Id.
125 Id. at 18.
126 It was also significant, though, for non-jurisprudential reasons, that the National Rifle
Association filed an amicus brief in support of the Respondent, Robert J. Stevens. Brief for
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Patricia Millett‘s arguments127 were well received by the Roberts
Court, which sustained her First Amendment arguments by an 8-1
margin.128 For our purposes, what is noteworthy129 is how Chief
Justice John Roberts built on Ms. Millett‘s arguments in his
majority opinion and how that opinion smacked of a new kind of
First Amendment absolutism. His comments, which I will quote
shortly, came on the heels of the following argument made by thenSolicitor General Elena Kagan and then-Deputy Solicitor General
Neal Katyal in their merits brief for the government: ―Whether a
given category of speech enjoys First Amendment protection
depends upon a categorical balancing of the value of the speech
against its societal costs.‖130
The Chief Justice took strong
exception to that expansion of Chaplinsky:
As a free-floating test for First Amendment coverage, that
sentence is startling and dangerous. The First Amendment‘s
guarantee of free speech does not extend only to categories of
speech that survive an ad hoc balancing of relative social
costs and benefits. The First Amendment itself reflects a
judgment by the American people that the benefits of its
restrictions on the Government outweigh the costs.131
And then drawing on Chaplinsky and other cases, Roberts
stressed five areas of unprotected speech:
―From 1791 to the present,‖ however, the First
Amendment has ―permitted restrictions upon the content of
speech in a few limited areas,‖ and has never ―include[d] a
freedom to disregard these traditional limitations.‖132 . . .
These ―historic and traditional categories [are] long familiar
Nat‘l Rifle Ass‘n of America, Inc. as Amici Curiae Supporting Respondent at 3, United States
v. Stevens, 130 S. Ct. 1577 (2009) (No. 08-769).
127 See Lyle Denniston, Analysis: Animal Cruelty Law in Trouble, SCOTUSBLOG (Oct. 6,
2009, 11:29 AM), http://www.scotusblog.com/?p=11476 (―Katyal had been challenged
rigorously throughout his argument, but Millett did not encounter any serious pressure, until
Justice Alito opted to join actively in the questioning.‖).
128 United States v. Stevens, 130 S. Ct. 1577, 1582 (2010).
129 Central to the ruling in Stevens was the fact that the federal law in question explicitly
regulated expression based on content, which rendered it presumptively invalid. See Nadine
Strossen, United States v. Stevens: Restricting Two Major Rationales for Content-Based
Speech Restrictions, CATO SUP. CT. REV. 67, 77 (2010).
130 Brief for the United States, supra note 119, at 8.
131 Stevens, 130 S. Ct. at 1585.
132 Id. at 1584 (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 382–83 (1992)).
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to the bar,‖133 . . . [and include] obscenity,134 . . .
defamation,135 . . . fraud,136 . . . incitement,137 . . . and speech
integral to criminal conduct138 . . . . [They] are ―well-defined
and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any
Constitutional problem.‖139
In hewing closely to Chaplinsky‘s traditional exceptions, the
Stevens majority refused either to analogize to other exceptions to
uphold the animal crush video law,140 or to employ a balancing test
by which to evaluate that law. As the Chief Justice put it ever so
succinctly: ―we decline to carve out from the First Amendment any
novel exception.‖141
Since the animal cruelty law, as written,142 did not fall within one
of the narrowly defined class of Chaplinsky exceptions, the law was
struck down as facially unconstitutional and impermissibly
133 Stevens, 130 S. Ct. at 1584 (quoting Simon & Schuster, Inc. v. Members of N.Y. State
Crime Victims Bd., 502 U.S. 105, 127 (1991) (Kennedy, J., concurring in the judgment)).
134 Stevens, 130 S. Ct. at 1584 (citing Roth v. United States, 354 U.S. 476, 483 (1957)).
135 Stevens, 130 S. Ct. at 1584 (citing Beauharnais v. Illinois, 343 U.S. 250, 254–55 (1952)).
136 Stevens, 130 S. Ct. at 1584 (citing Va. State Bd. of Pharmacy v. Va. Citizens Consumer
Council, 425 U.S. 748, 771 (1976)).
137 Stevens, 130 S. Ct. at 1584 (citing Brandenburg v. Ohio, 395 U.S. 444, 447–49 (1969)
(per curiam)).
138 Stevens, 130 S. Ct. at 1584 (citing Giboney v. Empire Storage & Ice Co., 336 U.S. 490,
498 (1949)).
139 Stevens, 130 S. Ct. at 1584 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571–
72 (1942)).
140 The Stevens majority rejected the following argument tendered by Justice Samuel Alito
in dissent:
It is undisputed that the conduct depicted in crush videos may constitutionally be
prohibited. All 50 States and the District of Columbia have enacted statutes prohibiting
animal cruelty. . . . But before the enactment of [the federal animal crush video law], the
underlying conduct depicted in crush videos was nearly impossible to prosecute.
....
In light of the practical problems thwarting the prosecution of the creators of crush
videos under state animal cruelty laws, Congress concluded that the only effective way of
stopping the underlying criminal conduct was to prohibit the commercial exploitation of
the videos of that conduct.
Stevens, 130 S. Ct. at 1598 (Alito, J., dissenting) (citations omitted).
141 Id. at 1586 (majority opinion).
142 After Stevens, the Act was rewritten to squarely place and confine the actions
prohibited to a traditional Chaplinsky exception, namely, obscenity. See Animal Crush Video
Prohibition Act of 2010, Pub. L. No. 111-294, 124 Stat. 3177 (2010). In that regard, Congress
specifically found that ―[t]he United States has a long history of prohibiting the interstate
sale, marketing, advertising, exchange, and distribution of obscene material and speech that
is integral to criminal conduct,‖ and ―[i]n the judgment of Congress, many animal crush
videos are obscene.‖ Id. §§ 2(1), 2(6), 124 Stat. at 3177.
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overbroad.143
The Stevens case, as first argued by Ms. Millett and then as ruled
upon by Chief Justice Roberts in his majority opinion, reveals how
Chaplinsky has been limited by a most narrow reading of its
exceptions, and has likewise been further constrained by judicial
doctrines such as overbreadth. The result is a kind of nearabsolutist tenet of First Amendment jurisprudence, which
establishes a virtually impossible bar for the government to
overcome. Moreover, the proverbial default position is protected
expression unless the government can show that the speech in
question falls within one of the recognized Chaplinsky exceptions.144
There was also another aspect of the Stevens case that warrants
highlighting. It concerns what I have previously referred to as the
low-value speech prong of Chaplinsky.145 Despite Chief Justice
Roberts‘s queries during oral arguments in Stevens,146 in the end he
seemed little concerned about the low-value speech prong. As he
put it in his majority opinion: ―[m]ost of what we say to one another
lacks ‗religious, political, scientific, educational, journalistic,
historical, or artistic value‘ (let alone serious value), but it is still
sheltered from government regulation.‖147 In this respect, the Chief
Justice seemed to be giving new staying power to Justice Anthony
Kennedy‘s dictum in United States v. Playboy Entertainment Group,
Inc.148: the government cannot justify regulation of expression on
the premise that ―the speech is not very important.‖149 Thus
understood, much of the worth of Chaplinsky‘s second prong was
likewise undermined.
Stevens was not, however, the end of the new absolutism story;
rather, it was just the beginning, as the next case reveals.
Snyder v. Phelpsthe case of the small and bizarre religious sect
that felt called by God to protest at military funeralswas one of
those First Amendment cases that tested the steel of one‘s
commitment to free speech principles.150 Walter Dellinger, a liberal
See Stevens, 130 S. Ct. at 1592.
See Paul E. Salamanca, Snyder v. Phelps: A Hard Case that Did Not Make Bad Law,
CATO SUP. CT. REV. 57, 78 (2011).
145 See supra text accompanying notes 95–105.
146 Transcript of Oral Argument for Stevens, supra note 119, at 37, 41, 57.
147 Stevens, 130 S. Ct. at 1591 (quoting 18 U.S.C. § 48(b) (2006)).
148 United States v. Playboy Entm‘t Grp., Inc., 529 U.S. 803 (2000).
149 Id. at 826.
150 Snyder v. Phelps, 131 S. Ct. 1207, 1213 (2011).
143
144
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defender of some First Amendment causes,151 argued against the
rights claimed by Reverend Fred W. Phelps, Sr.152 In urging that
the Court let stand a substantial damages award against the
Kansas preacher and his anti-gay crusade,153 Dellinger (a partner at
O‘Melveny & Myers LLP and a former law professor)154 argued that
the speech in question was simply too offensive to deserve
constitutional protection.155 Much to the same effect, the amicus
brief for the state of Kansas, and forty-seven other states and the
District of Columbia, essentially urged the Court to create a new
exception (―The [s]anctity [a]nd [p]rivacy [o]f [f]unerals [i]s
[u]nique‖156 and thus warrants unique treatment) or shoehorn the
facts of this case into an existing exception (the intentional
infliction of emotional distress).157
On the other side there was Margie J. Phelps, lawyer and
daughter of Reverend Fred Phelps, the Respondent.158 Though
nowhere as seasoned a constitutional lawyer as Mr. Dellinger, Ms.
Phelps realized the importance of following in the analytical steps of
Ms. Millett, and in drawing on Stevens to buttress her case. Here is
the way she put it in her merits brief to the Court:
Liability in this case would, essentially, carve out a
151 See Tony Mauro, Walter E. Dellinger III, in THE YALE BIOGRAPHICAL DICTIONARY OF
AMERICAN LAW 159 (Roger K. Newman ed., 2009).
152 Brief for Senator Harry Reid et al., as Amici Curiae Supporting Petitioner at 4–5,
Snyder, 131 S. Ct. 1207 (No. 09-751).
153 As Lyle Denniston, reporting for SCOTUSblog, described the case: ―The family of the
dead soldier had won a verdict before a jury, but that was overturned by the Fourth Circuit
Court, finding that the signs displayed at the funeral in western Maryland and later
comments on an anti-gay website were protected speech. The petition for review seeks the
Court‘s protection for families attending a funeral from ‗unwanted‘ remarks or displays by
protesters.‖ Lyle Denniston, Court to Rule on Funeral Pickets, SCOTUSBLOG (Mar. 8, 2010,
10:36 AM), http://www.scotusblog.com/?p=17263.
154 Mauro, supra note 151, at 159. Currently on leave from Duke Law School, Dellinger
served as a law clerk to Justice Hugo Black during the 1968–69 Term. Id.
155 Brief for Senator Harry Reid et al., supra note 152, at 4–5 (―State tort laws supplement
[state and federal anti-]funeral picketing regulations in deterring harmful conduct at private
funerals and protecting the rights of mourners to express their own private messages of grief
and tribute. . . . The right to speak freely about matters of public concern does not encompass
insults and verbal abuse intended to invade a private memorial ceremony and injure its
participants. Respondents were and are free to convey their repugnant message in virtually
any public manner they choose. But they were not free to hijack petitioners‘ private funeral
as a vehicle for expression of their own hate.‖).
156 Brief for the State of Kansas et al., as Amici Curiae in Support of Petitioner at 5–17,
Snyder v. Phelps, 131 S. Ct. 1207 (2010) (No. 09-751).
157 Id. at 2–5.
158 Tony Mauro, „Hurtful Speech on Public Issues‟ Ruled Protected, N.Y.L.J., Mar. 3, 2011,
at 1.
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category of speech based on viewpoint, and strip it of
constitutional protection, simply because society dislikes (or
deems valueless or unnecessary) speaking ill of the dead
(especially if the dead is a soldier). ―As a free-floating test
for First Amendment coverage, [that proposal] is startling
and dangerous. The First Amendment‟s guarantee of free
speech does not extend only to categories of speech that
survive an ad hoc balancing of relative social cost and
benefits.‖ This is what Petitioner seeks – treating speech
that speaks ill of the military-dead or is subjectively deemed
outrageous to mourners of the military-dead as unprotected.
The Court should decline to carve out such a ―novel‖
exception that is ―highly manipulable.‖159
And the Snyder Court, by an 8–1 majority, with Roberts again
writing for the Court and Alito again in dissent, agreed. It elected
not to create a ―novel‖ exception or to cabin the facts into one of
Chaplinsky‘s traditional exceptions.160 Writing with absolutist-like
fervor in response to Justice Alito‘s claims, and rejecting arguments
that the speech in question involved a captive audience,161 inflicted
emotional distress,162 amounted to defamation,163 or fighting
words,164 the Chief Justice declared: ―[A]s the court below noted,
there is ‗no suggestion that the speech at issue falls within one of
the categorical exclusions from First Amendment protection, such
as those for obscenity or fighting words.‘‖165
Also noteworthy, and again reminiscent of what he wrote in
Stevens, is how little credence, if any, the Chief Justice gave to
Chaplinsky‘s low-value speech prong. To reiterate what Professor
Paul Salamanca has keenly observed about the majority opinion,
Roberts stressed that the First Amendment protects speech that is
―disagreeable,‖166 ―distasteful,‖167 ―unsettling,‖168 ―misguided,‖169
159 Brief for Respondents at 53, Snyder, 131 S. Ct. 1207 (No. 09-751) (alteration in original)
(quoting United States v. Stevens, 130 S. Ct. 1577, 1585–86 (2010)).
160 Snyder v. Phelps, 131 S. Ct. 1207, 1219–21 (2011) (finding instead that the speech was
―entitled to ‗special protection‘ under the First Amendment‖ because it was made in a public
place and was about a topic of public interest, and therefore Phelps could not be held liable
for this speech under any tort action).
161 Id. at 1220.
162 Id.
163 Id. at 1215 n.3.
164 Id.
165 Id. (quoting Snyder v. Phelps, 580 F.3d 206, 218 n.12 (4th Cir. 2009), rev‟d, 131 S. Ct.
1207 (2011).
166 Salamanca, supra note 144, at 58 (quoting Texas v. Johnson, 491 U.S. 397, 414 (1989)).
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―scurrilous,‖170
provocative,171
―contemptuous,‖172
vulgar,173
174
175
176
―insulting,‖
―outrageous,‖
and even ―hurtful.‖
Against that
backdrop, it would seem to be difficult to prevail on a values
argument.
In Snyder, as in Stevens, the operative presumption177 given the
posture of those cases is that speech is to be protected unless it
clearly falls into a designated category of unprotected expression.178
By that conceptual yardstick, the default is ―protection, or at least
presumptive protection.‖179
Paul M. Smith is most well known as the lawyer who successfully
argued Lawrence v. Texas,180 the landmark gay rights case.181 A
partner in the Washington, D.C. office of Jenner & Block,182 the
former Lewis Powell law clerk is another skilled Supreme Court
advocate and one who had also litigated some important First
Amendment cases183 such as United States v. American Library
Association.184 More recently, he argued Brown v. Entertainment
Merchants Association,185 the violent video game case.186 Like
Salamanca, supra note 144, at 58 (quoting Cohen v. California, 403 U.S. 15, 21 (1971)).
Salamanca, supra note 144, at 58 (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)).
169 Salamanca, supra note 144, at 58 (quoting Hurley v. Irish-American Gay, Lesbian and
Bisexual Grp. of Bos., Inc., 515 U.S. 557, 574 (1995)).
170 Salamanca, supra note 144, at 58 (quoting Cohen, 403 U.S. at 22).
171 Salamanca, supra note 144, at 58 (citing Terminiello, 337 U.S. at 4).
172 Salamanca, supra note 144, at 58 (quoting Street v. New York, 394 U.S. 576, 593
(1969)).
173 Salamanca, supra note 144, at 58 (quoting Cohen, 403 U.S. at 25).
174 Salamanca, supra note 144, at 58 (quoting Boos v. Barry, 485 U.S. 312, 322 (1988)).
175 Salamanca, supra note 144, at 58 (quoting Boos, 485 U.S. at 322).
176 Salamanca, supra note 144, at 58 (quoting Hurley v. Irish-American Gay, Lesbian and
Bisexual Grp. of Bos., Inc., 515 U.S. 557, 574 (1995)).
177 That is, at least in cases of content discrimination. United States v. Playboy Entm‘t
Grp., Inc., 529 U.S. 803, 813 (2000).
178 Salamanca, supra note 144, at 78.
179 Id.
180 Lawrence v. Texas, 539 U.S. 558, 561 (2003).
181 See DALE CARPENTER, FLAGRANT CONDUCT: THE STORY OF LAWRENCE V. TEXAS 182–83,
270–71 (2012).
182 Paul M. Smith, JENNER & BLOCK, http://jenner.com/people/PaulSmith (last visited Jan.
23, 2013). At Jenner & Block, ―[Mr.] Smith is Chair of the Appellate and Supreme Court
Practice and Co-Chair of the Media and First Amendment, and Election Law and
Redistricting Practices.‖ Id. In 2010, the American Bar Association‘s Section of Individual
Rights and Responsibilities awarded Mr. Smith its Thurgood Marshall Award ―for his work
promoting civil rights and civil liberties.‖ Id.
183 Id.
184 United States v. Am. Library Ass‘n, Inc., 539 U.S. 194, 197 (2003) (upholding the
Children‘s Internet Protection Act over a First Amendment challenge).
185 Brown v. Entm‘t Merchs. Ass‘n, 131 S. Ct. 2729, 2732 (2011).
167
168
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Patricia Millett before him, Smith made an important contribution
to the new First Amendment absolutism. Early on in his merits
brief in Brown, Mr. Smith argued:
In Stevens, the Court powerfully reaffirmed that the First
Amendment leaves unprotected only a handful of ―historic
and traditional categories long familiar to the bar,‖ including
―obscenity,‖ ―incitement,‖ and ―defamation.‖ ―‗From 1791 to
the present,‘ . . . the First Amendment has ‗permitted
restrictions upon the content of speech in a few limited
areas,‘ and has never ‗include[d] a freedom to disregard these
traditional limitations.‘‖187
By that logic, Mr. Smith argued that, per the logic of Stevens, the
historical exceptions should be narrowly construed; hence
government cannot extend the obscenity exception to cases
involving violent depictions.188
Similarly, he took analytical
exception to the state‘s attempt to ―[c]arve [o]ut‖ a First
Amendment exception for ―‗[o]ffensively [v]iolent‘ [v]ideo
[g]ames.‖189 No such new exception could be created, even if, as
here, the case involved ―offensive‖ speech marketed to minors.190
Wrote Smith: ―At times, California backs away from claiming the
right to regulate offensive material generally and instead asserts
the right to regulate the supposedly distinct category of ‗offensive
violence.‘ But that narrower approach is still fundamentally
contrary to the established First Amendment framework, as
reiterated in Stevens.‖191
In an amicus brief, Robert Corn-Revere, a renowned First
Amendment lawyer at the Washington, D.C. office of Davis Wright
Tremaine,192 added to the Millett-Smith chorus when he argued
Id. at 2732–33.
Respondents‘ Brief at 19, Schwarzenegger v. Entm‘t Merchs. Ass‘n, 131 S. Ct. 2729
(2010) (No. 08-1448) (alterations in original) (quoting United States v. Stevens, 130 S. Ct.
1577, 1584 (2010)).
188 Respondents‘ Brief, supra note 187, at 19–23.
189 Id. at 23 (quoting Petitioners‘ Brief at 7, Brown, 131 S. Ct. 2729 (No. 08-1448))
190 See id.
191 Id. at 30.
192 Robert
Corn-Revere,
DAVIS
WRIGHT
TREMAINE
LLP,
http://www.dwt.com/people/robertcornrevere (last visited Jan. 23, 2013). Mr. Corn-Revere
successfully argued United States v. Playboy Entertainment Group, Inc., which struck down
section 505 of the Telecommunications Act of 1996, a federal law that required cable
television operators to scramble or block channels that are ―primarily dedicated to sexuallyoriented programming‖ from 10 p.m. to 6 a.m. United States v. Playboy Entm‘t Grp., Inc.,
529 U.S. 803, 806 (2000) (quoting 47 U.S.C. § 561(a) (Supp. III 1994)) (internal quotation
186
187
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that ―Petitioners[] demand that this Court recognize a new category
of ‗historically unprotected‘ speech‖ particularly in regards to a ―new
and emerging media.‖193 Here again, the litigation strategy was to
expand First Amendment protection by constricting the reach of
Chaplinsky‘s exceptions.
As in Stevens and Snyder, the Brown Court sustained the First
Amendment claim,194 this time by 7–2 margin with Justice Antonin
Scalia writing for the majority and Justices Clarence Thomas and
Stephen Breyer in dissent.195 In what was becoming an increasingly
familiar mantra, Justice Scalia declared: ―Last Term, in Stevens, we
held that new categories of unprotected speech may not be added to
the list by a legislature that concludes certain speech is too harmful
to be tolerated.‖196 In a clear pronouncement that the majority was
holding firm to that principle, Scalia emphasized:
[W]ithout persuasive evidence that a novel restriction on
content is part of a long (if heretofore unrecognized) tradition
of proscription, a legislature may not revise the ―judgment
[of] the American people,‖ embodied in the First
Amendment, ―that the benefits of its restrictions on the
Government outweigh the costs.‖ That holding controls this
case.197
Notably, unlike the five exceptions identified in Chaplinsky (lewd,
obscene, profane, and defamatory speech along with fighting
words),198 or the five singled out in Stevens (obscenity, defamation,
fraud, incitement and speech integral to criminal conduct),199 the
Brown majority listed but three exceptions (obscenity, incitement,
and fighting words).200 And then, by way of an absolutist-like
marks omitted). He was also the lawyer who successfully petitioned Governor George Pataki
to posthumously pardon the comedian Lenny Bruce. Ronald K.L. Collins, Comedy and
Liberty: The Life and Legacy of Lenny Bruce, 79 SOC. RES. 61, 80–84 (2012). For a profile of
this First Amendment lawyer, see David L. Hudson Jr., Robert Corn-Revere, in 1
ENCYCLOPEDIA OF THE FIRST AMENDMENT 349 (John R. Vile et al. eds., 2009).
193 Brief of Comic Book Legal Defense Fund as Amicus Curiae Supporting Respondents at
31, Brown, 131 S. Ct. 2729 (No. 08-1448) (quoting Petitioners‘ Brief, supra note 189, at 13).
194 Here, as in Stevens, the law in question imposed a restriction on the content of protected
speech and was thus invalid unless the state could demonstrate that its law could satisfy strict
scrutiny, which it could not do. Brown v. Entm‘t Merchs. Ass‘n, 131 S. Ct. 2729, 2738 (2011).
195 Id. at 2732. Justice Samuel Alito wrote a narrowly framed concurrence in which the Chief
Justice joined. Id. at 2742 (Alito, J., concurring).
196 Id. at 2734 (majority opinion).
197 Id. (quoting United States v. Stevens, 130 S. Ct. 1577, 1585 (2010)).
198 See supra notes 43–48 and accompanying text.
199 See supra text accompanying notes 133–39.
200 Brown, 131 S. Ct. at 2733.
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jurisprudential panache, Justice Scalia added:
Because the Act imposes a restriction on the content of
protected speech, it is invalid unless California can
demonstrate that it passes strict scrutiny—that is, unless it
is justified by a compelling government interest and is
narrowly drawn to serve that interest. The State must
specifically identify an ―actual problem‖ in need of solving,
and the curtailment of free speech must be actually
necessary to the solution. That is a demanding standard. ―It
is rare that a regulation restricting speech because of its
content will ever be permissible.‖201
Think of that passage. Does it not smack of First Amendment
absolutism? How often, if ever, will the government be able to
muster up the kind of evidence required to satisfy such a
demanding standard of review? Neither Justice Alito‘s minimalist
procedural due process approach202 nor Justice Thomas‘s
constraining historicism203 managed to convince a majority of the
Brown Court to budge from its brand of free speech absolutism.
Similarly, Justice Breyer was no more successful in urging the
Court to veer from its absolutism and recognize a category of
protection of children, buttressed by what he saw as a compelling
state interest.204
With its opinions in Stevens, Snyder, and Brown, the Roberts
Court was well poised to defend, yet again, its own variation of First
Amendment absolutism. And it ventured to do just that the year
after Brown, this time in a case involving military medals.205
The new absolutism suffered its first cracks when its metal was
tested in United States v. Alvarez206—the lying about military
medals case. Before proceeding further, let me echo a few astute
points made earlier by Chief Judge Alex Kozinski207 when the case
was before him and his Ninth Circuit colleagues. Kozinski began
his separate opinion this way:
201 Id. at 2738 (quoting United States v. Playboy Entm‘t Grp., Inc., 529 U.S. 803, 818, 822
(2000)) (other citations omitted).
202 Brown, 131 S. Ct. at 2742–43 (Alito, J., concurring).
203 Id. at 2751–52 (Thomas, J., dissenting).
204 Id. at 2767 (Breyer, J., dissenting).
205 United States v. Alvarez, 132 S. Ct. 2537, 2542 (2012).
206 Id.
207 United States v. Alvarez, 638 F.3d 666, 673 (9th Cir. 2011) (Kozinski, C.J., concurring in
denial of rehearing en banc), aff‟d, 132 S. Ct. 2537, 2542 (2012).
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According to our dissenting colleagues, ―non-satirical and
non-theatrical, knowingly false statements of fact are always
unprotected‖ by the First Amendment. Not ―often,‖ not
―sometimes,‖ but always. Not ―if the government has an
important interest‖ nor ―if someone‘s harmed‖ nor ―if it‘s
made in public,‖ but always. ―Always‖ is a deliciously
dangerous word, often eaten with a side of crow.208
Note, at the outset, how the Chief Judge took issue with the
categorical approach taken by his colleagues, how he contested the
soundness of any approach that would absolutely exclude all nonsatirical, non-theatrical, knowingly false statements from the
domain of free speech protection. That approach, narrowed as it
was, proved too broad to withstand the challenge of analytical
scrutiny, as his following observations ventured to prove:
So what, exactly, does the dissenters‘ ever-truthful utopia
look like? In a word: terrifying. If false factual statements
are unprotected, then the government can prosecute not only
the man who tells tall tales of winning the Congressional
Medal of Honor, but also the JDater who falsely claims he‘s
Jewish or the dentist who assures you it won‘t hurt a bit.
Phrases such as ―I‘m working late tonight, hunny,‖ ―I got
stuck in traffic‖ and ―I didn‘t inhale‖ could all be made into
crimes.
Without the robust protections of the First
Amendment, the white lies, exaggerations and deceptions
that are an integral part of human intercourse would become
targets of censorship, subject only to the rubber stamp
known as ―rational basis review.‖209
To be sure, there is a ―big picture‖ First Amendment lesson
here—a lesson about the role of truth in our modern-day
jurisprudence of free speech. I will say a little more about that on
another occasion.210 For now, my concerns are far more modest.
Id. (citations omitted)
Id.
210 It is a telling point: In 1952, Justice William O. Douglas boldly proclaimed that ―the First
Amendment was designed to protect‖ the ―pursuit of truth.‖ Adler v. Bd. of Educ., 342 U.S. 485,
511 (1952) (Douglas, J., dissenting). In the sixty some years since then, the Court has invoked
the pursuit of truth maxim but a single time. Univ. of Pa. v. EEOC, 493 U.S. 182, 196 (1990)
(quoting Adler, 342 U.S. at 511). Compare in this general regard Justice Robert Jackson‘s
powerful admonition:
The very purpose of the First Amendment is to foreclose public authority from assuming
a guardianship of the public mind through regulating the press, speech, and religion. In
208
209
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That is, Kozinski‘s arguments prompt us to pause about the idea of
categorical exceptions to the First Amendment. They teach us that
even tempered exceptions like the ones championed by the Chief
Judge‘s colleagues can prove problematic and do not always lend
themselves to easy resolution. If rigidly applied, so-called utopian
rationales can produce dystopian results.211 Kozinski‘s arguments
thus suggest a point relevant to our discussion here: even if
intentionally false speech were to be seen as a Chaplinsky
exception, that exception would have to be relaxed in much the way
this field every person must be his own watchman for truth, because the forefathers did
not trust any government to separate the true from the false for us.
Thomas v. Collins, 323 U.S. 516, 545 (Jackson, J., concurring) (citations omitted).
Whatever currency it may have in the academic realm, the pursuit of truth dictum has been
eclipsed by a far more popular Holmesian-inspired phrase—―the marketplace of ideas,‖ which
need not be seen as synonymous with the acquisition of truth. In the past twenty years
(1992–2012) alone, the marketplace of ideas metaphor has been invoked in twenty-four
different Supreme Court opinions. Search Terms in LexisNexis: Supreme Court Cases,
Lawyers‘ Edition: ―marketplace of ideas.‖ The search results were only within the specified
time period from January 1, 1992 to October 1, 2012. See also THE FUNDAMENTAL HOLMES: A
FREE SPEECH CHRONICLE AND READER 281–85, 302–03 (Ronald K.L. Collins ed., 2010)
(detailing the history of metaphor and its relationship to the idea of the pursuit of truth).
Recent attempts to reinvigorate the pursuit of truth ideal in First Amendment jurisprudence
have proven problematic. See, e.g., Ronald K.L. Collins & David M. Skover, Foreword: The
Guardians of Knowledge in the Modern State: Post‟s Republic and the First Amendment, 87
WASH. L. REV. 369, 384–93 (2012) (discussing problems of theories concerning truth and the
protection of academic freedom under the First Amendment).
211 In this regard, Professors Eugene Volokh and James Weinstein offered a counter
argument:
We recognize that our proposed approach [that the government can criminalize many
categories of intentionally false speech] means that, in principle, the government could
criminalize a wide range of lies, including on comparatively minor matters, such as lying
about one‘s age on a dating service or lying to a spouse about how much one lost at
poker. And we agree that many such lies should not be criminalized.
But the very fact that such lies are generally not illegal shows that the political process
can generally be trusted to prevent the imposition of criminal liability for casual social
lies. Indeed, the very fact that many such social lies are common is a powerful political
check on the growth of the criminal law in this area.
Yet when lawmakers think that a particular kind of lie is harmful enough, they should
generally be free to prohibit it.
Volokh & Weinstein Brief, supra note 49, at 28–29 (citing United States v. Alvarez, 638 F.3d
666, 673–75 (9th Cir. 2011) (Kozinski, C.J., concurring in the denial of rehearing en banc), aff‟d,
132 S. Ct. 2537, 2542 (2012)). While there is some merit here, my initial sense is that this
argument can be seen as buttressing the case for false speech. That is, the political process, so
we are assured, recognizes the need for a certain degree of falsity in speech. Hence, it does not
penalize it. In that sense, it is not categorical in how it deals with intentionally false
expression. If the political process makes that concession, why in principle should the judiciary
act otherwise in how it interprets the First Amendment? Why, absent real, present and
demonstrable harm should it view the matter differently? And is this not, at least in principle,
what Justice Kennedy‘s plurality opinion ventured to do in Alvarez?
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that the Sullivan court relaxed the law of libel.212 Or as the Chief
Judge put it: ―[W]hen it comes to pure speech, truth is not the sine
qua non of First Amendment protection. That the government can
constitutionally regulate some narrow categories of false speech—
such as false advertising, defamation and fraud—doesn‘t mean that
all such speech falls outside the First Amendment‘s bounds.‖213
With that as our conceptual backdrop, let us now return to the
Alvarez case when it was before the Supreme Court. After oral
arguments and deliberation, the vote in the case was 4-2-3, with
Justice Anthony Kennedy writing for the plurality (joined by the
Chief Justice and Justices Ruth Bader Ginsburg and Sonia
Sotomayor).214 Justice Stephen Breyer wrote a concurrence (joined
by Justice Elena Kagan).215 And Justice Samuel Alito wrote a
dissent (joined by Justices Antonin Scalia and Clarence Thomas).216
Mindful of this division in Alvarez, our discussion of the Roberts
Court‘s free speech record may be illuminated by pausing to note
the Justices‘ voting record in their more recent cases in this area.
{continued on the next page}
212 See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 268 (1964) (footnote omitted) (citations
omitted) (―Respondent relies heavily, as did the Alabama courts, on statements of this Court to
the effect that the Constitution does not protect libelous publications. Those statements do not
foreclose our inquiry here.‖).
213 Alvarez, 638 F.3d at 673–74 (citing Meyer v. Grant, 486 U.S. 414, 419 (1988)).
214 United States v. Alvarez, 132 S. Ct. 2537, 2542 (2012).
215 Id. at 2551 (Breyer, J., concurring in the judgment).
216 Id. at 2556 (Alito, J., dissenting).
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VOTING LINEUP OF ROBERTS COURT JUSTICES
Roberts
Scalia
Kennedy
Thomas
Alito
Ginsburg
Breyer
Sotomayor
Kagan
Votes to affirm First Amendment claim under strict scrutiny review
4
4
5
3
1
4
1
4
3
Votes to affirm free speech claim (on strict scrutiny or alternative less protective grounds)
5
4
5
3
2
United States v.
218



5
3
5
4



+





+

+

+
Stevens217


Snyder v. Phelps219






Brown v. Entertainment Merchants Association 220
+



+


Knox v. Service Employees International Union, Local 1000221





United States v.





+
Alvarez 222

This chart, incomplete as it is,223 does tell us something
important, namely, that while Justice Kennedy, Chief Justice
Roberts, and Justices Scalia and Sotomayor are most likely to lean
towards a kind of near-absolutism, Justices Breyer and Alito are
just as likely to move in the opposite direction.224 Notice, too, how
United States v. Stevens, 130 S. Ct. 1577, 1582 (2010); id. at 1592 (Alito, J., dissenting).
Key:
 = sustains First Amendment claim under strict scrutiny review.
+ = concurs in affirming free speech claim on First Amendment or alternative
grounds but without strict scrutiny review.
 = denies First Amendment claim.
219 Snyder v. Phelps, 131 S. Ct. 1207, 1212 (2011); id. at 1222 (Alito, J., dissenting).
220 Brown v. Entm‘t Merchs. Ass‘n, 131 S. Ct. 2729, 2731, (2011); id. at 2742 (Alito, J.,
concurring in the judgment); id. at 2751 (Thomas, J., dissenting); id. at 2761 (Breyer, J.,
dissenting).
221 Knox v. Serv. Emps. Int‘l Union, Local 1000, 132 S. Ct. 2277, 2284 (2012); id. at 2296
(Sotomayor, J., concurring in the judgment); id. at 2299 (Kagan, J., dissenting).
222 United States v. Alvarez, 132 S. Ct. 2537, 2542 (2012); id. at 2551 (Breyer, J.,
concurring in the judgment); id. at 2556 (Alito, J., dissenting).
223 For a comprehensive account of the Roberts Court‘s voting record in First Amendment
free speech cases, see infra Appendix.
224 Were one to exclude the Knox opinion (the anti-union free speech case), Justice Alito‘s
First Amendment free speech record would be even less sympathetic to affirming rights claims
in free expression cases. See supra notes 217, 219–22. Cf. Ronald K.L. Collins, Judge Alito &
the New First Amendment Defenders, FIRST AMENDMENT CTR. (Nov. 21, 2005),
http://archive.firstamendmentcenter.org/analysis.aspx?id=16090
(noting
Justice
Alito‘s
occasional liberality in deciding First Amendment free speech cases).
217
218
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uncertain votes from Justices Thomas and Kagan‘s to affirm a First
Amendment free speech claim can be. With this in mind, simply
consider how conceptually divergent were the approaches outlined
by Justice Kennedy in his plurality, Justice Breyer in his
concurrence, and Justice Alito in his dissent. Let us begin with how
Justice Kennedy viewed the matter:
The previous discussion suffices to show that the Act
conflicts with free speech principles.
But even when
examined within its own narrow sphere of operation, the Act
cannot survive. In assessing content-based restrictions on
protected speech, the Court has not adopted a free-wheeling
approach, but rather has applied the ―most exacting
scrutiny.‖ Although the objectives the Government seeks to
further by the statute are not without significance, the Court
must, and now does, find the Act does not satisfy exacting
scrutiny.225
This approach smacks of the new absolutism, of the near absolute
protection of free speech in certain cases. Contrast that with the
approach urged by Justice Breyer:
I agree with the plurality that the Stolen Valor Act of
2005 violates the First Amendment. But I do not rest my
conclusion upon a strict categorical analysis. Rather, I base
that conclusion upon the fact that the statute works First
Amendment harm, while the Government can achieve its
legitimate objectives in less restrictive ways.
....
Sometimes the Court has referred to this approach as
―intermediate scrutiny,‖ sometimes as ―proportionality‖
review, sometimes as an examination of ―fit,‖ and sometimes
it has avoided the application of any label at all.226
225 Alvarez, 132 S. Ct. at 2548 (citing United States v. Stevens, 130 S. Ct. 1577, 1585
(2010)). ―The First Amendment‘s guarantee of free speech does not extend only to categories
of speech that survive an ad hoc balancing of relative social costs and benefits.‖ Alvarez, 132
S. Ct. at 2548 (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994))
226 Alvarez, 132 S. Ct. at 2551–52 (Breyer, J., concurring in the judgment) (citations omitted).
For a discussion of what Congress might do after Alvarez, see Barnum, supra note 13, at 546–
56, and Jeffery C. Barnum, Comment, False Valor: Amending the Stolen Valor Act to Conform
with the First Amendment‟s Fraudulent Speech Exception, 86 WASH. L. REV. 841, 866–69 (2011).
On September 13, 2012, the House passed the Stolen Valor Act of 2012 by a 410–3 margin. See
Stolen Valor Act of 2012, H.R. 1775, 112th Cong. (2012); Larry Shaughnessy, House Passes
Revamped
Stolen
Valor
Act,
CNN.COM
(Sept.
13,
2012,
8:04
PM),
http://security.blogs.cnn.com/2012/09/13/house-passes-revamped-stolen-valor-act. Section 2(b) of
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At a certain level of generality, what we see here is reminiscent of
the kind of First Amendment balancing once championed by
Justices Frankfurter and Harlan227 and contested by Justices Black
and Douglas.228 Finally, we come to Justice Alito, the Roberts
Court‘s most consistent critic of expanding First Amendment free
speech rights. With Chaplinsky-like fervor, Justice Alito229 drew on
precedents that referred to both prongs of Chaplinsky‘s dictum. To
make the point, I have taken the liberty of quoting a wider swath of
his opinion: ―Time and again, this Court has recognized that as a
general matter false factual statements possess no intrinsic First
Amendment value.‖230
that then proposed law provides: ―Whoever, with intent to obtain money, property, or other
tangible benefit, fraudulently holds oneself out to be a recipient of a decoration or medal
described in subsection (c)(2) or (d) shall be fined under this title, imprisoned not more than one
year, or both.‖ H.R. 1775 § 2(b). As of December 2012, the Senate passed its own amended
version of the Stolen Valor Act. See Stolen Valor Act of 2012, H.R. 1775, 112th Cong. § 503(b)(1)
(2012) (―Whoever, with the intent of securing a tangible benefit or personal gain, knowingly,
falsely, and materially represents himself or herself through any written or oral communication
(including a resume) to have served in the Armed Forces of the United States or to have been
awarded any decoration, medal, ribbon, or other device authorized by Congress or pursuant to
federal law for the Armed Forces of the United States, shall be fined under this title, imprisoned
for not more than 6 months, or both.‖); Stolen Valor Act of 2012, H.R. 1775, 112th Cong. §
503(b)(2) (2012) (defining ―tangible benefit or personal gain‖). See also Rick Maze, Senate
Passes
Revised
Stolen
Valor
Act,
AIR
FORCE
TIMES
(Dec.
3,
2012),
http://www.armytimes.com/news/2012/12/military-senate-passes-revised-stolen-valor-act-120312
(discussing differences between House and Senate bills).
227 See, e.g., RONALD K.L. COLLINS & SAM CHALTAIN, WE MUST NOT BE AFRAID TO BE FREE:
STORIES OF FREE EXPRESSION IN AMERICA 8–10 (2011) (contrasting the views of balancers and
absolutists); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 792–94 (2d ed. 1988) (same).
228 COLLINS & CHALTAIN, supra note 227, at 9–10.
229 See Clay Calvert, Justice Samuel A. Alito‟s Lonely War Against Abhorrent, Low-Value
Expression: A Malleable First Amendment Philosophy Privileging Subjective Notions of Morality
and Merit, 40 HOFSTRA L. REV. 115, 152–53, 171 (2011).
230 Alvarez, 132 S. Ct. at 2560 (citing Illinois ex rel. Madigan v. Telemarketing Ass., Inc., 538
U.S. 600, 612 (2003) (―Like other forms of public deception, fraudulent charitable solicitation is
unprotected speech.‖); BE & K Constr. Co. v. NLRB, 536 U.S. 516, 531 (2002) (―[F]alse
statements may be unprotected for their own sake.‖); Hustler Magazine, Inc. v. Falwell, 485
U.S. 46, 52 (1988) (―False statements of fact are particularly valueless; they interfere with the
truth-seeking function of the marketplace of ideas, and they cause damage to an individual‘s
reputation that cannot easily be repaired by counterspeech, however persuasive or effective.‖);
Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776 (1984) (―There is ‗no constitutional value in
false statements of fact‘‖ (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974))); Bill
Johnson‘s Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983) (―[F]alse statements are not
immunized by the First Amendment right to freedom of speech.‖); Brown v. Hartlage, 456 U.S.
45, 60 (1982) (―Of course, demonstrable falsehoods are not protected by the First Amendment in
the same manner as truthful statements.‖); Herbert v. Lando, 441 U.S. 153, 171 (1979)
(―Spreading false information in and of itself carries no First Amendment credentials.‖); Va.
State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976)
(―Untruthful speech, commercial or otherwise, has never been protected for its own sake.‖);
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What is, I think, significant about Justice Alito‘s line of string
citations and quotations is that many of the very cases he cited
discounted the Chaplinsky categorical dictum and allowed for a
degree of First Amendment protection.231 In fairness, Justice Alito
might reply that there was a certain subset of false-speech cases
that were categorically unprotected. But even on that score, and as
evidenced by the bold plurality opinion and the timid concurring
opinion, a majority of the Roberts Court would not yield.
Still, while the plurality opinion took yet another conceptual
swipe at the Chaplinsky dictum, it nonetheless did something
noteworthy—something that might be seen as adding a dollop of
vigor to that infamous dictum. Unlike the five exceptions identified
in Chaplinsky (lewd, obscene, profane, and defamatory speech along
with fighting words),232 or the five flagged in Stevens (obscenity,
defamation, fraud, incitement and speech integral to criminal
conduct),233 or the three cited in Brown (obscenity, incitement, and
fighting words),234 Justice Kennedy‘s plurality opinion listed the
following nine categories of unprotected expression, which he
conceded were not all inclusive:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
incitement
obscenity
certain kinds of defamation
speech integral to criminal conduct
fighting words
child pornography
fraud
true threats, and
―speech presenting some grave and imminent threat the
government has the power to prevent.‖235
Gertz, 418 U.S. at 340 (―T]he erroneous statement of fact is not worthy of constitutional
protection.‖); Time, Inc. v. Hill, 385 U.S. 374, 389 (1967) (―[T]he constitutional guarantees [of
the First Amendment] can tolerate sanctions against calculated falsehood without significant
impairment of their essential function.‖) (emphasis added); Garrison v. Louisiana, 379 U.S. 64,
75 (1964) (―[T]he knowingly false statement and the false statement made with reckless
disregard of the truth, do not enjoy constitutional protection.‖)).
231 See e.g., Madigan, 538 U.S. at 611–12 (stating that the First Amendment protects
charitable solicitation, spreading ideas, etc., but fraud is not protected); Va. State Bd. of
Pharmacy, 425 U.S. at 761 (asserting that the First Amendment protects commercial speech).
232 Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
233 United States v. Stevens, 130 S. Ct. 1577, 1584 (2010).
234 Brown v. Entm‘t Merchs. Ass‘n, 131 S. Ct. 2729, 2733 (2011).
235 Alvarez, 132 S. Ct. at 2544 (citations omitted).
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Although the Alvarez plurality followed Stevens, Snyder, and
Brown in applying a near-absolutist level of First Amendment
protection at least where content-based restrictions were involved,
it is noteworthy that its list of exceptions was longer than any
identified in either Chaplinsky or the three cases mentioned
immediately above. Still, it was far shorter than the list of fortythree exceptions identified earlier.236
EIGHT POST-CHAPLINSKY OBSERVATIONS
It is difficult to deny: All legal doctrines, if they are to have
staying power, must have a limiting principle. Otherwise, they
become senseless pap or, worse still, reckless excuses for injustice.
To be sure, unchecked absolutism wars with any and all limiting
principles, including those grounded in the sober soil of
contextualism. In meaningful measure, that is the lesson of legal
realism. All of which brings us back to Professor Smolla‘s comment
quoted at the outset of this Foreword: ―Absolutism may have a place
in a sensible theory of freedom of speech, but not as the
comprehensive methodology.‖237 All right. That seems reasonable
enough (note Smolla‘s use of the adjective ―sensible‖). Absolutism
cannot be categorical; if it is to garner any respect it must yield
some sensible room. Fair enough. So that rules out Justice Hugo
Black‘s bold First Amendment absolutism, qualified as it was for his
own peculiar purposes.238 But what of absolutism that is not
comprehensive and broad but rather comprehensive within a
narrow realm? Here, I am reminded of Alexander Meiklejohn‘s
absolute protection for a narrow category of speech, namely,
political speech.239 Unlike Justice Black‘s absolutism, which was
seen by some as granting too much constitutional protection,
Meiklejohn‘s absolutism was often criticized as granting too little
See supra text accompanying notes 50–92.
1 SMOLLA, supra note 1, at 27.
238 See MAGEE, supra note 28, at 144–81 (discussing Justice Black‘s absolutism and how he
qualified it).
239 See Alexander Meiklejohn, The First Amendment is an Absolute, 1961 SUP. CT. REV. 245,
250, 259; see also ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELFGOVERNMENT 26 (1948) (―The principle of the freedom of speech springs from the necessities of
the program of self-government.‖).
236
237
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protection.240 And then a categorical rule, such as that of Miranda
v. Arizona,241 can be riddled over time by a bevy of exceptions that
can render the original rule almost meaningless.242 Such are the
downsides of a categorical (or should I say non-nuanced categorical)
approach to constitutional decision-making.
What then about balancing? Ad hoc balancing of the kind once
espoused by Justices Felix Frankfurter243 and John Marshall
Harlan II,244 or today embraced by Justice Stephen Breyer245 often
tends to diminish the domain of free speech rights. When there is
too much play in the doctrinal joints the temptation to be risk
adverse, even to hypothetical lengths, is often too great to shun.
Moreover, as Stephen Feldman has duly noted, ad hoc balancing all
too easily becomes a form of judicial decision-making ―without
principles, without law.‖246
240 See, e.g., Zechariah Chafee, Jr., Book Review, 62 HARV. L. REV. 891, 897 (1949) (reviewing
MEIKLEJOHN, supra note 239). However, Meiklejohn was far from the most rigid champion of
this form of limiting absolutism. That honor may go to the recently deceased federal appellate
judge Robert Bork, who not only believed that the First Amendment was instituted to absolutely
protect only political speech, but also specifically excluded art, literature, and science from any
First Amendment discussion. See Robert Bork, Neutral Principles and Some First Amendment
Problems, 47 IND. L.J. 1, 26–28 (1971).
241 Miranda v. Arizona, 384 U.S. 436, 468–69 (1966).
242 See Barry Friedman, The Wages of Stealth Overruling (With Particular Attention to
Miranda v. Arizona), 99 GEO. L.J. 1, 16–25 (2010) (detailing the subsequent court decisions
which limited the application of Miranda); Yale Kamisar, The Rise, Decline and Fall (?) of
Miranda, 87 WASH. L. REV. 965 (2013),.
243 See Dennis v. United States, 341 U.S. 494, 519 (1951) (Frankfurter, J. concurring in the
judgment) (denying First Amendment claim) (―This conflict of interests cannot be resolved by a
dogmatic preference for one or the other, nor by a sonorous formula which is in fact only a
euphemistic disguise for an unresolved conflict. If adjudication is to be a rational process, we
cannot escape a candid examination of the conflicting claims with full recognition that both are
supported by weighty title-deeds.‖); see also PHILIP B. KURLAND, MR. JUSTICE FRANKFURTER
AND THE CONSTITUTION 75–107 (1971) (excerpting Frankfurter‘s free speech opinions).
244 For example, see Harlan‘s majority opinions in Barenblatt v. United States, 360 U.S. 109,
134 (1959), where the Court upheld the House Un-American Activities Committee convictions
for contempt of Congress, and see In re Anastaplo, 366 U.S. 82, 97 (1961), where the Court
denied a First Amendment claim in a bar admission case. Of course, there were occasions when,
oddly enough, Harlan‘s balancing test secured First Amendment rights denied under Justice
Black‘s view of the law. See, e.g., Cohen v. California, 403 U.S. 15, 16, 26 (1971) (Harlan, J.,
writing for the majority with Black, J., joining Blackmun, J., dissenting) (upholding the right to
wear a ―fuck the draft‖ jacket in the halls of a public court). But in yet other instances, Black‘s
absolutism triumphed. See, e.g., N.Y. Times Co. v. United States, 403 U.S. 713, 713 (1971) (per
curiam) (denying government‘s request for a prior restraint against newspapers seeking to
publish classified materials regarding the Vietnam War); id. at 714–15 (Black, J., concurring);
id. at 752 (Harlan, J., dissenting).
245 See United States v. Alvarez, 132 S. Ct. 2537, 2551 (2012) (Breyer, J., concurring).
246 STEPHEN M. FELDMAN, FREE EXPRESSION AND DEMOCRACY IN AMERICA: A HISTORY 373
(2008). Professor Feldman adds:
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Looking back seventy years after the case came down, what have
we learned from Justice Frank Murphy‘s constitutional handiwork
in Chaplinsky v. New Hampshire? What lessons does it teach us in
our modern First Amendment era governed, for now, by the rule
and reason of a majority of the Roberts Court? There are, of course,
many lessons, but here are a few I believe to be worthy of special
consideration.
First, just as Chaplinsky dismissed the absolutism of runaway
liberality, it ushered in its own brand of absolutism, an absolutism
of categorical denial. That is, Chaplinsky, at least at its outset, was
a one-way form of absolutism that automatically ratcheted
downwards to deny free speech rights rather than upwards to
affirm them. This was a theory devoid of nuance. To change the
metaphor, it performed its jurisprudential operations with a saw
rather than with a scalpel.
Second, if there was a historically demonstrable basis for
Chaplinsky‟s categorical exceptions to the First Amendment,
reliable evidence of such a record was never fully tendered. For
that matter, are we even sure of the jurisprudential methodology
that would be invoked to identify such exceptions? For example,
where do we look to for historical evidence? Do we look to:

The text of the First Amendment, confined as it is to
―Congress‖?247
What, for instance, qualifies as an interest (and thus becomes part of the balancing
calculus)? What weight should be accorded to different interests? How should
different kinds of interests be weighed or compared? How, for example, should one
weigh an interest in economic prosperity against an interest in speaking freely? They
are the proverbial apples and oranges . . . . Constitutional issues often ―demand the
appraisal and balancing of human values which there are no scales to weigh,‖ [Justice
Learned] Hand observed. ―Who can say whether the contributions of one group may
not justify allowing it a preference? How far should the capable, the shrewd or the
strong be allowed to exploit their powers?‖ As Hand elucidated, the problem ―does not
come from ignorance, but from the absence of any standard, for values are
incommensurable.‖ Even more important, . . . if legislatures enacted laws in response
to competing interests, and the Court resolved disputes by balancing countervailing
interests, then what [would] distinguish[] legislative [preferences] from judicial
decision making?
Id. (quoting Learned Hand, The Contribution of an Independent Judiciary to Civilization, in
THE SPIRIT OF LIBERTY: PAPERS AND ADDRESSES OF LEARNED HAND 155, 161 (Irving Dillard ed.,
3d ed. 1960)).
247 Ronald K.L. Collins, The Speech & Press Clauses of the First Amendment, 29 DEL. LAW. 8,
(Winter, 2011–2012).
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





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445
The records of the debates on the Amendment?248
The evidence in the state ratifying conventions?249
The evidence in contemporaneously published newspapers
and elsewhere?250
The law as found in criminal laws and in the common law
of the states at the time near ratification?251
The evidence set out in private correspondence and
diaries?252
The record of what appears in treaties from the time?,253 or
The record gleaned from the actual practice of the press
and the people in exercising free speech rights?254
How much determinative weight do we give to such materials?
And what if the early historical records255 are largely barren or
vague so far as a purported historical exception is concerned?256
248 See THE COMPLETE BILL OF RIGHTS: THE DRAFTS, DEBATES, SOURCES, AND ORIGINS 83–92
(Neil H. Cogan ed., 1997).
249 Id. at 97–101.
250 Id. at 101–15.
251 Id. at 119–28.
252 Id. at 115–19.
253 Id. at 119–28.
254 See LEONARD W. LEVY, EMERGENCE OF A FREE PRESS 147 (1985) (―My original interest law
with law and theory; I had paid little attention to press practices.‖).
255 To be sure, there is an originalist flavor to the Chaplinsky exceptions, though nowhere did
the Court venture to substantiate its historical assumptions. In a recent essay decisively
critical of originalism, Judge Richard Posner argued: ―The decisive objection to the quest for
original meaning, even when the quest is conducted in good faith, is that judicial historiography
rarely dispels ambiguity. Judges are not competent historians. Even real historiography is
frequently indeterminate, as real historians acknowledge.‖ Richard A. Posner, The Spirit
Killeth, but the Letter Giveth Life, NEW REPUBLIC, Sept. 13, 2012, at 18, 19.
256 Take obscenity, for example. In the nation‘s early years, there were no federal statutes
and but a few state ones. See Kevin W. Saunders, Media Violence and the Obscenity Exception
to the First Amendment, 3 WM. & MARY BILL RTS. J. 107, 116–17 (1994) (providing descriptions
of Massachusetts‘s obscenity statute and the blasphemy statutes in Connecticut and Vermont).
As for the common law, see Commonwealth v. Sharpless, 2 Serg. & Rawle 91, 91–92, 102 (Pa.
1815), which refers to certain common law doctrines to uphold a conviction for showing an
obscene drawing done for profit, and DAVID M. RABBAN, FREE SPEECH IN ITS FORGOTTEN YEARS
193 (1997), which notes that the early common law treated obscenity as a type of libel. As
Professor Geoffrey Stone has observed:
The Supreme Court‘s claim in Roth that ―implicit in the history of the First Amendment
is the rejection of obscenity as utterly without redeeming social importance‖ was
misleading, at best. Indeed, the most striking fact about that era was the absence of any
laws regulating such material. What the Court did in Roth was to extrapolate from
regulations of libel, blasphemy, and profanity to regulations of obscenity. It was that
extrapolation that required the Court‘s subtle use of the word ―implicit.‖ But the real
lesson ―implicit‖ in the origins of the First Amendment is that at the time the First
Amendment was enacted obscenity was treated completely differently from libel,
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Third, Chaplinsky‘s five enumerated exceptions might be seen as
under-inclusive when measured against Alvarez‟s nine exceptions,
which in turn seem grossly under-inclusive when considered against
the forty-three exceptions listed above. This tells us something
about the enterprise of absolute exceptions—that is, their currency
as a jurisprudential theory depends on a specified, limited number
of exceptions. When you have some forty-three exceptions to a rule,
the core of protected speech constricts considerably. With that
many exceptions, is it even reasonable to argue that there is a rule
in the first place?257 In such a world, might it not make more sense
blasphemy, and profanity.
Geoffrey R. Stone, Sex, Violence, and the First Amendment, 74 U. CHI. L. REV. 1857, 1863 (2007)
(quoting Roth v. United States, 354 U.S. 476, 484 (1957)) (footnote omitted). The offense ―does
not appear to have been clearly established there until the enactment of Lord [Chief Justice
John] Campbell‘s Act of 1857.‖ THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION
468 (1970). See also JAMES C. N. PAUL & MURRAY L. SCHWARTZ, FEDERAL CENSORSHIP:
OBSCENITY IN THE MAIL 9–20 (1961) (noting development of the law of obscenity in America).
As Professors Paul and Schwartz noted, prior to 1842 when Congress enacted the Tariff Act
which regulated obscene prints or pictures brought into the country, there was some common
law authority for regulation in this area:
[There were] a few cases and some very general pronouncements in the leading texts . . .
to the effect that public exhibition or sale of obscene things, including books, was
criminal even in the absence of a statute. But in the actual cases [that] had arisen, the
courts seemed more concerned with the scandalous behavior of the particular individuals
who had been indicted than with the general repression of a [category of expression].
Id. at 11–12. In 1842, a provision was inserted into the Tariff Act to deal with the ―problem‖ of
the French postcard trade. See id. at 12. The law authorized customs officers to seize imported
prints and pictures that were ―obscene or immoral‖ and thereafter to go to court to request their
destruction. Id. Later, in 1857, an amendment was added to ―more effectually accomplish the
[p]urposes for which the [p]rovision was enacted.‖ Act of Mar. 2, 1857, ch. 270, 34 Stat. 168, 168
(1857). Under the amended law obscene ―images‖ and ―obscene articles‖ were added to the
censorial list. Id. Hence, to the best of my knowledge the first major development in the law of
obscenity occurred abroad, in England. What Lord Chief Justice Alexander Cockburn wrote in
R. v. Hicklin, [1868] L. R. 3 Q. B. 360, 360 (Eng.), would have a profound effect on American law
for scores and scores of years thereafter. In the United States, it was more than a half-century
after the First Amendment became law that anything that might be labeled an obscenity law
(loosely defined) found its way into federal law. PAUL & SCHWARTZ, supra, at 11–12. Then, in
1865, Congress enacted a new law to protect the military amidst reports that obscene print and
photographic items were being mailed to soldiers. Id. at 17–18. The crudely crafted and
confusing law was supposed to prohibit the distribution of obscene books and pictures in the
U.S. mails. Id. ―Although there was no clear consensus in 1792 that obscenity was not
protected by the First Amendment, obscenity has in fact been regulated by every state in the
nation since Anthony Comstock launched his anti-obscenity campaign in the 1860s.‖ Stone,
supra, at 1865.
257 In order to deal with the problem of protecting various kinds of intentionally false speech,
Professors Volokh and Weinstein have noted:
Another approach would be to hold that, though knowingly false statements of fact are
generally constitutionally protected, there are many narrow exceptions to this rule: one
for defamation, one for per-jury, one for fraudulent solicitation of money, one for the false
light tort, one for intentional infliction of emotional distress through knowing falsehoods,
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to view the rule as the exception and vice-versa? Perhaps that
explains why the Court has been deliberately modest in listing the
number of exceptions it concedes at any one time.258 Or as Justice
Kennedy put it in 1991: The list consists of only ―a few legal
categories.‖259 Justice Scalia made precisely the same point a year
later when he proclaimed that the list of exceptions pertains only to
―a few limited areas.‖260 In other words, the speech-protective
regime of the Roberts Court‘s interpretation of Chaplinsky requires
that the number of recognized exceptions to the First Amendment
one for the knowing use of deceptive party names in campaigns, and so on.
This, though, would make it impossible for this Court to say, at it has before, that the
exceptions to the general ban on content-based restrictions apply only to ―a few limited
areas.‖ The list of recognized First Amendment exceptions would grow from a handful—
incitement, obscenity, threats, speech closely linked to conduct, fighting words, and false
statements of fact—to more than fifteen . . . .
And this growth in the number of exceptions will likely stimulate calls for more
exceptions, including ones not limited to false statements of fact. If more than fifteen
categories of speech are excluded from First Amendment protection, why not more—
perhaps ―hate speech‖ or speech depicting violence or the like?
Volokh & Weinstein Brief, supra note 49, at 13–14 (citations omitted). Picking up on this very
idea, Professor Richard Delgado once called on the Court to expand its existing list of exceptions
to the First Amendment:
[O]ver the past century the courts have carved out or tolerated dozens of ―exceptions‖ to
free speech. These exceptions include: speech used to form a criminal conspiracy or an
ordinary contract; speech that disseminates an official secret; speech that defames or
libels someone; speech that is obscene; speech that creates a hostile workplace; speech
that violates a trademark or plagiarizes another‘s words; speech that creates an
immediately harmful impact or is tantamount to shouting fire in a crowded theatre;
―patently offensive‖ speech directed at captive audiences or broadcast on the airwaves;
speech that constitutes ―fighting words‖; speech that disrespects a judge, teacher,
military officer, or other authority figure; speech used to defraud a consumer; words used
to fix prices; words (―stick ‗em up—hand over the money‖) used to communicate a
criminal threat; and untruthful or irrelevant speech given under oath or during a trial.
Much speech, then, is unprotected. The issues are whether the social interest in reining
in racially offensive speech is as great as that which gives rise to these ―exceptional‖
categories, and whether the use of racially offensive language has speech value.
Id. at 14–15 (quoting Richard Delgado, Campus Antiracism Rules: Constitutional Narratives in
Collision, 85 NW. U. L. REV. 343, 377–78 (1991)) (other citations omitted).
258 To much the same effect, Professors Volokh and Weinstein have noted that:
[T]he creation of a large array of free speech exceptions ought to be avoided. Having a
dozen exceptions for subcategories of knowingly false statements may seem more speechprotective than having a general exception for all knowingly false statements. But such
a proliferation of exceptions may ultimately prove to be less speech-protective, because it
may open the door to more exceptions that will not be limited to knowing falsehoods.
Volokh & Weinstein Brief, supra note 49, at 17.
259 Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105,
127 (1991) (Kennedy, J., concurring in the judgment).
260 R.A.V. v. City of St. Paul, 505 U.S. 377, 382–83 (1992).
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be reined in and that the quantity be kept small and manageable.261
Fourth, as the doctrinal history of Chaplinsky‘s exceptions make
clear, they are not entirely categorical. Thus, libel is not entirely
excluded from the domain of protected speech as the ruling in New
York Times Company v. Sullivan262 makes clear. That is, it is more
accurate to label the exceptions as a ―limited categorical
approach.‖263 In other words, the stated exceptions are themselves
subject to exceptions—they are subject to being reined in as
circumstances warrant. Moreover, it is well to bear in mind what
Justice Scalia has said on this score in his opinion for the Court in
R.A.V. v. City of St. Paul:
Our cases surely do not establish the proposition that the
First Amendment imposes no obstacle whatsoever to
regulation of particular instances of such proscribable
expression, so that the government ‗may regulate [them]
freely.‖ That would mean that a city council could enact an
ordinance prohibiting only those legally obscene works that
contain criticism of the city government or, indeed, that do
not include endorsement of the city government. Such a
simplistic,
all-or-nothing-at-all
approach
to
First
Amendment protection is at odds with common sense and
with our jurisprudence as well.264
261 Here again, it is useful to consider what Professors Volokh and Weinstein have pointed
out in this regard:
But as the exceptions become more plentiful, they may begin to seem like they swallow
the rule. As Justice Scalia noted in the Fourth Amendment context, once a rule (there,
the warrant requirement) ―become[s] so riddled with exceptions that it [is] basically
unrecognizable,‖ it is easy to see new exceptions not ―as some momentous departure, but
rather as merely the continuation of an inconsistent jurisprudence that has been with us
for years,‖ and to conclude that the rule needs to be jettisoned altogether.
Volokh & Weinstein Brief, supra note 49, at 17 (quoting California v. Acevedo, 500 U.S. 565,
582, 583 (1991) (Scalia, J., concurring in the judgment)).
262 N.Y. Times Co. v. Sullivan, 376 U.S. 254, 283, 292 (1964). Justice Scalia conceded as
much in his R.A.V. opinion: ―Our decisions since the 1960‘s have narrowed the scope of the
traditional categorical exceptions for defamation, but a limited categorical approach
has
remained an important part of our First Amendment jurisprudence.‖ R.A.V., 505 U.S. at 383
(citations omitted).
263 See R.A.V., 505 U.S. at 383.
264 Id. at 384 (footnote omitted) (citation omitted). But consider what Justice Scalia said in a
later case:
The First Amendment prohibits laws ―abridging the freedom of speech,‖ which, ―‗as a
general matter . . . means that government has no power to restrict expression because
of its message, its ideas, its subject matter, or its content.‘‖ But the Amendment has no
application when what is restricted is not protected speech.
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This is yet more evidence that Chaplinsky‘s exemptions are not as
categorical as they may have first appeared.
Fifth, as the majority opinions in Stevens and Brown and the
plurality opinion in Alvarez reveal, Chaplinsky‘s exceptions can be
read to ratchet up free speech freedom by strongly protecting speech
(or at least certain kinds) outside of the proscribed realm of
unprotected speech.265
This kind of reverse psychology has
produced a new kind of First Amendment absolutism.
Sixth, the Roberts Court seems to invoke Chaplinsky analysis
only in those situations in which it is inclined to sustain a rights
claim. Even so, the Roberts Court has both sustained266 and
denied267 free speech claims in situations in which it has ignored
any Chaplinsky-type analysis. To be sure, how the Court
approaches a case is shaped in some part by how that case is
briefed; and the lawyers in Stevens,268 Snyder,269 Brown,270 and
Alvarez271 relied on a Chaplinsky-type analysis. That said, the
Court is not obligated to adhere firmly to that kind of analysis; the
Justices can accept, reject, or even ignore it.
Seventh, it is within the realm of reasonable possibility that the
Court might in the future take steps to rein in its liberal application
of Chaplinsky. If so, it might do so in at least three ways:
(i) it might simply ignore any Chaplinsky-like analysis
altogether;
(ii) it might recognize a ―new‖ historical exception(s); or
Nev. Comm‘n on Ethics v. Carrigan, 131 S. Ct. 2343, 2347 (2011) (alteration in original)
(citations omitted).
265 See United States v. Alvarez, 132 S. Ct. 2537, 2547, 2548, 2551 (2012) (Kennedy, J.,
plurality opinion); Brown v. Entm‘t Merchs. Ass‘n, 131 S. Ct. 2729, 2741–42 (2011); United
States v. Stevens, 130 S. Ct. 1577, 1586, 1592 (2010).
266 See, e.g., Knox v. Serv. Emp. Int‘l Union, Local 1000, 132 S. Ct. 2277, 2295–96 (2012).
267 See, e.g., Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2730, 2731 (2010).
268 Brief for the Respondent, supra note 116, at 16–17 (citing R.A.V., 505 U.S. at 383).
269 See, e.g., Brief for Respondents, supra note 159, at 20–33 (discussing post-Chaplinsky
―categorical‖ caselaw).
270 See, e.g., Brief of Respondents at 19, Brown, 131 S. Ct. 2729 (No. 08-1448) (citing Stevens,
130 S. Ct. at 1584); Brief of Amicus Curiae Comic Book Legal Defense Fund in Support of
Respondents, supra note 193, at 31–36. Robert Corn-Revere was counsel of record for Amicus in
this case and Ronald G. London was with him on the brief. Id. at 1.
271 See, e.g., Brief of Amici Curiae the Reporters Committee for Freedom of the Press and
Twenty-Three News Media Organizations in Support of Respondent at 12–19, United States v.
Alvarez, 132 S. Ct. 2537 (2012) (No. 11-210). Robert Corn-Revere was counsel of record for
Amici in the case and Lucy A. Dalglish and Ronald G. London were listed on the brief, among
others. Id. at 1.
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(iii) it might invoke the second tenet of Chaplinsky‘s dictum and
decline to sustain a free expression claim because the speech
in question is not an ―essential part of any exposition of
ideas‖272 and/or because the expression at issue is of ―slight
social value as a step to truth.‖273
And finally, there is the take away point to be gleaned from Chief
Judge Kozinski‘s opinion in Alvarez. That is, is not his critique of
absolutism in denying free speech rights likewise applicable to a
kind of absolutism in affirming free speech rights? After all, is not
the real problem categorical reasoning? Floyd Abrams, the First
Amendment lawyer par excellence of our times,274 spoke to this very
point in a 1988 speech he presented at Harvard Law School:
Absolutism sounds dumb, sounds blunt instead of narrow,
sounds as if one is insistent on making so broad a statement
of law that it cannot possibly be correct. And, of course, any
statement that one really means to be absolutist in character
is only defensible if there is quite literally, no hypothetical
set of facts—none at all—that would lead one to retreat from
absolutist principles . . . . A First Amendment absolutist
must be prepared to accept the potential consequences of his
or her absolutism. If there is an exception that one grants,
[it] overcomes the claims of absolutism, [and then] the
absolutism falls before its weight.275
Even so, Mr. Abrams did not leave the idea of First Amendment
absolutism out in the cold; thus, he did not relegate it to a fanciful
idea never to be allowed entry into the house of the law:
All that being said, it says something about the power of
the First Amendment that we not only have a good body of
principles in that area that may fairly (if uncomfortably) be
described as absolutist—but a good body more that deny
their absolutist quality but are so near absolutist in their
nature that, in practical effect, it is as if they were absolutist
....
Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
Id.
274 See, e.g., David Segal, A Matter of Opinion?, N.Y. TIMES, July 19, 2009, at 1 (Sunday Bus.
Sect.).
275 Floyd Abrams, First Amendment Near-Absolutism, at 8–9 (Mar. 2, 1988) (unpublished
remarks, on file with the author). The remarks will be reprinted in FLOYD ABRAMS, FRIEND OF
THE COURT: ON THE FRONT LINES WITH THE FIRST AMENDMENT (forthcoming 2013).
272
273
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Are there really any absolutist First Amendment rights?
Has the Supreme Court really gone so far as to say that, in
any area at all, the ―no law‖ language of the First
Amendment quixotically means no law? The surprising
answer is that now and then, at least, ―no law‖ means just
that.276
In both the law Mr. Abrams has long argued for,277 and in a
certain line of Roberts Court cases we have seen examples of what I
have termed the new absolutism.
A FEW TENTATIVE CONCLUSIONS
If the Roberts Court‘s new absolutism is a cause for elation in
some First Amendment quarters, then its rulings on student
speech,278 government employee speech,279 and prisoner speech,280
Id.
See COLLINS, supra note 26.
278 Morse v. Frederick, 551 U.S. 393, 410 (2007).
It is difficult to read Morse and see the Roberts Court as protective of free speech. The
banner at issue in this case was silly and incoherent. There was not the slightest
evidence that it caused any harm; there was no claim that it was disruptive and
certainly no evidence that it increased the likelihood of drug use. But, the conservative
majority still ruled against speech and in favor of the government.
Erwin Chemerinsky, Not a Free Speech Court, 53 ARIZ. L. REV. 723, 728 (2011) (footnote
omitted).
279 Garcetti v. Ceballos, 547 U.S. 410, 426 (2006).
Garcetti is . . . an important limit on First Amendment protections for speech by
government employees; it is a categorical exception from constitutional protection for
speech while on the job and in the scope of the employee‘s duties. The case‘s premise
that the First Amendment protects only speech ―as citizens‖ has no foundation in other
case law. For example, in Citizens United v. Federal Election Commission, the Court
protected the speech of corporations even though they, of course, are not citizens. The
explicit premise of Citizens United is that more speech is better whatever the source; the
effect of Garcetti v. Ceballos is that there will be significantly less speech. Moreover,
government employees do not lose their citizenship when they walk into the government
office building.
Chemerinsky, supra note 278, at 726 (footnotes omitted).
280 Beard v. Banks, 548 U.S. 521, 524–25, 536 (2006). Commenting on the case, Professor
Erwin Chemerinsky correctly observed:
The Court‘s deference to the government was stunning. This is a regulation that denies
prisoners access to all newspapers, magazines, and even family photographs. It is hard
to imagine a more extensive restriction of First Amendment rights. There was no
evidence that this actually improves prisoner behavior, and in fact, the Court said that
none was needed. The government‘s assertion of a benefit was sufficient to justify the
restriction on speech.
Chemerinsky, supra note 278, at 728 (footnotes omitted).
276
277
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along with its anti-terrorism material support ruling281 must be
cause for discontent. As with so many other things in life and law,
even those in the First Amendment community are far from
attaining free speech nirvana. So what do we know about the
Roberts Court‘s free speech jurisprudence at this pinpoint in time?
Generally speaking, here are a few tentative conclusions:
First, Chief Justice John Roberts is at the helm of this ship of the
Court‘s First Amendment jurisprudence. His number of majority
opinions far exceeds those of all others on the Court, including
Justice Anthony Kennedy.282 Roberts wrote the majority opinions in
Morse. v. Frederick283 and Holder v. Humanitarian Law Project,284
two important First Amendment cases in which the free speech
claim was denied. But then again, he also wrote the majority
opinions in United States v. Stevens285 and Snyder v. Phelps,286 in
which the Court boldly sustained the free speech rights at stake in
those cases.
Second, Justice Anthony Kennedy is also a real force in this area
of law; he authored the majority opinions in cases such as Citizens
United v. Federal Election Commission287 and Sorrell v. IMS Health
281 Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2730, 2731 (2010). In Holder, the
―restriction on speech was allowed even without any evidence that the speech would have the
slightest effect on increasing the likelihood of terrorist activity. The deference that the Court
gave to the government was tremendous and the restrictions it placed on speech were great.‖
Chemerinsky, supra note 278, at 730 (footnote omitted).
282 See infra Appendix.
283 Morse, 551 U.S. at 395. Kenneth Starr, a former special prosecutor and then dean of
Pepperdine Law School and now president of Baylor University, Ex-Prosecutor Starr Takes
Helm at Baylor U., CHI. TRIB., Feb. 16, 2010, at 13, represented the Petitioner school principal.
Id. at 395.
284 Holder, 130 S. Ct. at 2712.
285 United States v. Stevens, 130 S. Ct. 1577, 1582 (2010).
286 Snyder v. Phelps, 131 S. Ct. 1207, 1213 (2011).
287 Citizens United v. Fed. Election Comm‘n, 130 S. Ct. 876, 886 (2010). As Jeffrey Toobin
tells it, Chief Justice Roberts had originally assigned the Citizens United majority opinion to
himself and had planned to decide the case on narrow statutory grounds. JEFFREY TOOBIN, THE
OATH: THE OBAMA WHITE HOUSE AND THE SUPREME COURT 167–68 (2012). But Justice
Kennedy, aided by Justices Scalia, Thomas and Alito, wanted to reach the broader First
Amendment question and thereafter declare the McCain-Feingold campaign finance law
unconstitutional. See id.; Citizens United, 130 S. Ct. at 886. It was at that point that Roberts
purportedly yielded to Kennedy, who wrote the majority opinion after the case was reargued per
the Chief Justice‘s suggestion. See TOOBIN, supra, at 168; Thomas Goldstein, Jeff Toobin on
Citizens United (Slightly Expanded), SCOTUSBLOG (May 14, 2012, 9:30 PM),
http://www.scotusblog.com/2012/05/jeff-toobin-on-citizens-united (―[T]he Chief Justice lost his
majority to Kennedy‘s broader constitutional opinion. That happens. While Toobin calls the
draft Kennedy opinion a ‗majority,‘ he does not report that the entire majority switched to
Kennedy‘s opinion. It appears that Kennedy may have had only a plurality. The conservatives
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Inc.,288 and the plurality opinion in United States v. Alvarez.289
Though for different reasons, these are all significant opinions that
could have an important and long impact on the development of free
speech jurisprudence. More broadly speaking, in the opinions in
which he wrote a majority or a plurality opinion, Kennedy voted to
affirm First Amendment free expression rights claims in three of
five such cases.290
Third, Justice Antonin Scalia authored four of the Court‘s eight
opinions in First Amendment free expression cases where the
judgment was unanimous291 or near-unanimous.292 This tells us
that Chief Justice Roberts is more likely to assign such an opinion
to Justice Scalia than to any of his other colleagues on the Court.
But when the vote is closer, Justice Scalia is not the one likely to be
selected to write for the Court.
Fourth, Justice Clarence Thomas has a mixed record on free
expression issues. During his tenure while serving on the Roberts
Court, for example, he was a near-absolutist when it came to
deregulating elections293 and protecting commercial speech,294 but
withheld First Amendment protection in cases involving bans or
have repeatedly divided on how quickly to move the law to the right, and the Chief Justice has
been one to favor moving more slowly.‖).
288 Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2659 (2011).
289 United States v. Alvarez, 132 S. Ct. 2537, 2542 (2012).
290 See Garcetti v. Ceballos, 547 U.S. 410, 412, 426 (2006) (holding in a 5–4 decision that
freedom of expression does not shield employees in their official duties); Borough of Duryea v.
Guarnieri, 131 S. Ct. 2488, 2491, 2501 (2011) (vacating in an 8–1 decision, the Third Circuit‘s
affirmation of an employee‘s claim under the petition clause of the First Amendment); Citizens
United, 130 S. Ct. at 886 (sustaining claim in a 5–4 decision); Sorrell, 131 S. Ct. at 2672
(sustaining claim in a 6–3 decision); Alvarez, 132 S. Ct. at 2542, 2551 (holding in a 6–3 plurality
that lying about war time medals received is protected speech).
291 See Nev. Comm‘n on Ethics v. Carrigan, 131 S. Ct. 2343, 2346 (2011); Pleasant Grove City
v. Summum, 555 U.S. 460, 463 (2009); N.Y. State Bd. of Elections v. Torres, 552 U.S. 196, 197
(2008); Davenport v. Wash. Educ. Ass‘n, 551 U.S. 177, 180 (2007).
292 See Brown v. Entm‘t Merchs. Ass‘n, 131 S. Ct. 2729, 2732 (2011); United States v.
Williams, 553 U.S. 285, 287 (2008).
293 See Citizens United, 130 S. Ct. at 886 (joining Justice Scalia‘s concurrence in part); Davis
v. Fed. Election Comm‘n, 554 U.S. 724, 727 (2008) (joining the majority opinion); Wis. Right to
Life, Inc. v. Fed. Election Comm‘n, 546 U.S. 410, 410 (2007) (per curium); Randall v. Sorrell, 548
U.S. 230, 265 (2006) (joining in a concurring opinion with Justice Scalia). But see Wash. State
Grange v. Wash. State Rep. Party, 552 U.S. 442, 444 (2008) (authoring the majority opinion);
N.Y. State Bd. of Elections, 552 U.S. at 197 (joining the majority opinion).
294 See Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2658–59 (2011) (joining the majority
opinion); see also 44 Liquormart, Inc., v. Rhode Island, 517 U.S. 484, 526 (1996) (Thomas, J.,
concurring in the judgment) (―[A]ll attempts to dissuade legal choices by citizens by keeping
them ignorant are impermissible.‖).
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limits on video games,295 prisoner speech,296 government employee
speech,297 student expression,298 speech related matters involving
public employee unions,299 and purported material support for
terrorists.300 Hence, in a few select categories of cases, Justice
Thomas votes like an absolutist, though in a good number of other
free speech areas he is a sure vote to deny many free expression
claims.
Fifth, when Justice Stephen Breyer has been assigned to write a
lead opinion for the Roberts Court, it has typically been in cases
where the First Amendment claim has been denied.301 Otherwise,
he often finds himself in disagreement with the ―conservative‖ bloc.
For example, he dissented in many of the Roberts Court campaign
finance cases.302 So, too, he broke company with the Court‘s
conservative wing in employee speech303 and student speech304 cases
and took strong exception to the majority opinions in Holder v.
Humanitarian Law Project305 and Sorrell v. IMS Health Inc.306 On
295 Brown, 131 S. Ct. at 2751 (Thomas, J., dissenting).
A significant portion of Justice
Thomas‘s dissent, which no other justice joined, focused on the argument that the First
Amendment did not apply to minors. According to Justice Thomas, the drafters of the
Constitution and the Bill of Rights ―could not possibly have understood ‗the freedom of speech‘
to include an unqualified right to speak to minors.‖ Id. at 2759. Thus, to Justice Thomas, the
California statute forbidding the sale of violent video games to minors could not possibly be
unconstitutional, as it targeted a group that the Framers never intended the First Amendment
to protect. Id.
296 See Beard v. Banks, 548 U.S. 521, 524 (2006) (concurring in the judgment).
297 See Garcetti v. Ceballos, 547 U.S. 410, 412 (2006) (joining the majority opinion).
298 See Morse v. Frederick, 551 U.S. 393, 395 (2007) (joining the majority opinion).
299 See Ysursa v. Pocatello Educ. Ass‘n, 555 U.S. 353, 354 (2009) (joining the majority
opinion).
300 See Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2712 (2010) (joining the
majority opinion).
301 See Locke v. Karass, 555 U.S. 207, 209–10, 221 (2009) (authoring the unanimous opinion
denying a claim); Beard, 548 U.S. at 524, 536 (Breyer, J., plurality opinion) (authoring the
plurality opinion denying a claim). But see Randall v. Sorrell, 548 U.S 230, 236, 262 (2006)
(Breyer, J., plurality opinion) (authoring the plurality opinion sustaining a claim).
302 See Ariz. Free Enter. Club‘s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2829 (2011)
(Kagan, J., dissenting) (joining the dissenting opinion); Citizens United v. Fed. Election
Comm‘n, 130 S. Ct. 876, 929 (2010) (Stevens, J., dissenting) (joining the dissenting opinion);
Davis v. Fed. Election Comm‘n., 554 U.S. 724, 749 (2008) (Stevens, J., dissenting) (joining the
dissenting opinion), Fed. Election Comm‘n v. Wis. Right to Life, Inc., 551 U.S. 449, 504 (2007)
(Souter, J., dissenting) (joining the dissenting opinion). But see Randall, 548 U.S. at 236
(Breyer, J., plurality opinion) (authoring the plurality opinion with which Justices Roberts and
Alito joined in part).
303 Garcetti v. Ceballos, 547 U.S. 410, 444 (2006) (Breyer, J., dissenting).
304 Morse v. Frederick, 551 U.S. 393, 425 (2007) (Breyer, J., concurring in the judgment in
part and dissenting in part).
305 Holder, 130 S. Ct. at 2731 (Breyer, J., dissenting).
306 Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2673 (2011) (Breyer, J., dissenting).
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other occasions, however, Breyer broke ranks with Justices
Ginsburg, Sotomayor, and Kagan, and aligned himself with Justice
Thomas in registering a dissent in Brown v. Entertainment
Merchants Association.307
In Knox v. Service Employees
308
International Union,
Breyer declined to join Justices Ginsburg
and Sotomayor in concurring in the judgment of the Court. And in
United States v. Alvarez,309 he concurred by way of a separate
opinion (joined by Justice Kagan) that rejected the plurality‘s nearabsolutist approach to deciding the merits of the case. Given all of
the above, it seems that Justice Breyer is typically quite restrained
in his approach to free expression issues and looks more to context
and balancing than to any rigid or formulaic method of decisionmaking.
Sixth, those least likely to write for the Court in a First
Amendment free expression cases are the women members of the
Court: Justices Elena Kagan (zero opinions),310 Ruth Bader
Ginsburg (one opinion),311 and Sonya Sotomayor (one opinion).312
And when they do write, it is where there is a wide-vote margin in
cases denying a rights claim.313 Moreover, the total number of
opinions (majority and otherwise) authored by the Court‘s female
Justices is eight.314 While Justice Sotomayor did not come onto the
Court until 2009315 and Justice Kagan did not arrive until 2010,316
307 Brown v. Entm‘t Merchs. Ass‘n, 131 S. Ct. 2729, 2761 (2011) (Breyer, J., dissenting).
Justice Thomas wrote his own dissent with which no one joined. Id. at 2751 (Thomas, J.,
dissenting).
308 Knox v. Serv. Emp. Int‘l Union, Local 1000 132 S. Ct. 2277, 2296 (2012) (Sotomayor, J.,
concurring) (joined by Justice Ginsburg); id. at 2299 (Breyer, J., dissenting). Justice Kagan
joined in Justice Breyer‘s dissent. Id.
309 United States v. Alvarez, 132 S. Ct. 2537, 2551–56 (2012) (Breyer, J., concurring in the
judgment).
310 Cf. Ariz. Free Enter. Club‘s Freedom Club PAC v. Bennett, 131 S. Ct. at 2806, 2829 (2011)
(Kagan, J., dissenting); see infra Appendix. Justices Sotomayor, Ginsburg, and Breyer joined
Justice Kagan‘s dissent. Ariz. Free Enter. Club‟s Freedom Club PAC, 131 S. Ct. at 2829.
311 Golan v. Holder, 132 S. Ct. 873, 877, 878 (2012) (denying a claim by a 6–2 vote); see infra
Appendix.
312 Milavetz, Gallop & Milavetz v. United States, 130 S. Ct. 1324, 1329 (2010) (unanimously
denying a claim); see infra Appendix.
313 See, e.g., Milavetz, Gallop & Milavetz, 130 S. Ct. at 1329.
314 See infra Appendix.
315 The Court has decided fifteen First Amendment cases since Justice Sotomayor took her
seat. Charlie Savage, Senate Approves Sotomayor to Supreme Court, N.Y. TIMES, Aug. 7, 2009,
at A1 (noting that Sotomayor was confirmed on August 6, 2009); see infra Appendix.
316 The Court has decided ten First Amendment cases since Justice Kagan took her seat.
Carl Hulse, Senate Confirms Kagan in Partisan Vote, N.Y. TIMES, Aug. 6, 2010, at A1 (noting
that Kagan was confirmed on August 5, 2010); see infra Appendix.
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that number pales in comparison to thirty-eight such opinions
authored by their male counterparts during Justice Sotomayor‘s
tenure,317 and twenty-three during Justice Kagan‘s tenure.318
Translated: When it comes to opinions in First Amendment free
expression cases, this domain is ruled largely by the men.
Seventh, the Court has divided along ideological lines
(―conservative‖ vs. ―liberal‖) in all of the Court‘s 5–4 free expression
opinions.319 While labels are often misleading, where the Court is
badly divided, we will typically see Roberts, Kennedy, Scalia,
Thomas, and Alito in one camp and Ginsburg, Breyer, Sotomayor
and Kagan in another.
Eighth, in more than half of the cases (53%) where the Court
denied a First Amendment free expression claim, the vote was
unanimous or near unanimous.320 In only two of those nine cases
did the Court vote to fully affirm the lower court.321 This tells us
something about why the Court takes cases in the first instance.
That is, there is a certain corrective mindset at work here to rein in
what is seen by all or most of the Court‘s members as excessive
deference to First Amendment claims.
Ninth, forty some years ago, the Supreme Court aligned the free
speech liberty principle with the equality principle. Justice
Thurgood Marshall‘s opinion for a unanimous Court in Police
See infra Appendix.
See infra note 343 (counting the number of opinions written by male authors from Justice
Kagan‘s first opinion concerning First Amendment free speech in Sorrell v. IMS Health Inc., 131
S. Ct. 2653 (2011), resulting in twenty-three total opinions).
319 See Ariz. Free Enter. Club‘s Freedom Club v. Bennett, 131 S. Ct. 2806, 2829 (2011)
(Justices Kagan, Ginsburg, Breyer, and Sotomayor in dissent); Citizens United v. Fed. Election
Comm‘n, 130 S. Ct. 876, 929 (2010) (Justices Stevens, Ginsburg, Breyer, and Sotomayor in
dissent); Davis v. Fed. Election Comm‘n, 554 U.S. 724, 749 (2008) (Justices Stevens, Souter,
Ginsburg, and Breyer in dissent); Morse v. Frederick, 551 U.S. 393, 425, 433 (2007) (Justices
Stevens, Souter, Ginsburg in dissent, and Breyer in dissent in part); Garcetti v. Ceballos, 547
U.S. 410, 428 (2006) (Justices Stevens, Souter, Ginsburg, and Breyer in dissent).
320 See Reichle v. Howards, 132 S. Ct. 2088, 2090, 2097 (2012) (reversed and remanded);
Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2491, 2501 (2011) (vacated and remanded);
Nev. Comm‘n on Ethics v. Carrigan, 131 S. Ct. 2343, 2346, 2352 (2011) (reversed and
remanded); Doe v. Reed, 130 S. Ct. 2811, 2814, 2821 (2010) (affirmed); Milavetz, Gallop &
Milavetz, P.A., v. United States, 130 S. Ct. 1324, 1329, 1341 (2010) (affirmed in part, reversed in
part, and remanded); Pleasant Grove City v. Summum, 555 U.S. 460, 463, 481 (2009) (reversed
lower court); Locke v. Karass, 555 U.S. 207, 209, 221 (2009) (affirmed lower court); Davenport v.
Wash. Educ. Ass‘n, 551 U.S. 177, 179, 191–92 (2007) (vacated and remanded); Rumsfeld v.
Forum for Academic & Institutional Rights, 547 U.S. 47, 51, 70 (2006) (reversed and remanded).
321 Doe, 130 S. Ct. at 2821, aff‟g 586 F.3d 671 (9th Cir. 2009); Locke, 555 U.S. at 221, aff‟g 498
F.3d 49 (1st Cir. 2007).
317
318
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Department of the City of Chicago v. Mosley322 is illustrative of this
point. Echoing Alexander Meiklejohn, Justice Marshall stated:
―There is an ‗equality of status in the field of ideas,‘ and government
must afford all points of view an equal opportunity to be heard.‖323
That idea took on added traction when Kenneth Karst published his
groundbreaking article, Equality as a Central Principle of the First
Amendment,324 wherein he championed the ―principle of equal
liberty of expression.‖325 And where such equality is the touchstone,
the idea of leveling in the name of egalitarian fairness is buttressed.
That said, whatever the merit and reach of the equality principle in
First Amendment jurisprudence, that principle came to a halt in the
5–4 opinion authored by Chief Justice Roberts in Arizona Free
Enterprise Club‟s Freedom Club PAC v. Bennett.326 There, a divided
Court struck down a state matching funds law that provided
additional funds to a publicly funded candidate when expenditures
by a privately financed one (and independent groups) exceeded the
funding initially allotted to the publicly financed candidate.327 In
one sense, the case seemed decided before the ruling came down. I
refer to the rhetorical question the Chief Justice posed during oral
arguments in the case: ―I checked the Citizens‘ Clean Elections
Commission website this morning,‖ he began, ―and it says that this
[Arizona Citizens Clean Elections Act] was passed to, quote, ‗level
the playing field‘ when it comes to running for office. Why isn‘t that
clear evidence that it‘s unconstitutional?‖328 In striking down the
Police Dep‘t of the City of Chi. v. Mosley, 408 U.S. 92, 92 (1972).
Id. at 96 (footnote omitted) (quoting ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE
CONSTITUTIONAL POWERS OF THE PEOPLE 27 (1948)).
324 Kenneth L. Karst, Equality as a Central Principle in the First Amendment, 43 U. CHI. L.
REV. 20 (1975) (explaining that re-regulation of speech based on content is constitutionally
suspect). But cf. Kenneth L. Karst, The Liberties of Equal Citizens: Groups and the Due Process
Clause, 55 UCLA L. REV. 99, 116 n.95 (2007) (―Not long [after the publication of Karst‘s Equality
article], Geoffrey Stone offered a soft-spoken correction. He pointed out that a number of forms
of content regulation (prominently including regulations of subject matter) should satisfy First
Amendment scrutiny; the most serious constitutional concern is raised by viewpoint
discrimination.‖).
325 Geoffrey R. Stone, Kenneth Karst‟s Equality as a Central Principle in the First
Amendment, 75 U. CHI. L. REV. 37, 37 (2008).
326 Ariz. Free Enter. Club‘s Freedom PAC Club v. Bennett, 131 S. Ct. 2806, 2813 (2011).
327 Id. at 2813, 2828–29.
328 Transcript of Oral Argument at 48, Ariz. Free Enter. Club‟s Freedom Club PAC, 131 S. Ct.
2806
(No.
10-238),
available
at
http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-238.pdf. For additional
commentary, see GARRETT EPPS, WRONG AND DANGEROUS: TEN RIGHT-WING MYTHS ABOUT OUR
CONSTITUTION 69–82 (2012).
322
323
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Arizona election leveling law, the Chief Justice declared that ―we
have invalidated government-imposed restrictions on campaign
expenditures, restraints on independent expenditures applied to
express advocacy groups, limits on uncoordinated political party
expenditures, and regulations barring unions, nonprofit and other
associations, and corporations from making independent
expenditures for electioneering communication.‖329 In short, the
leveling principle has no place in the First Amendment
jurisprudence of the Roberts Court. In fact, that principle is the
very target of much of the Court‘s decisional law in this area.
And finally, there is the immense gulf between the Roberts
Court‘s generosity in Citizens United v. Federal Election
Commission,330 and its niggardliness in Holder v. Humanitarian
Law Project. In the former, it eschewed judicial restraint by
skirting the doctrines of stare decisis331 and constitutional
avoidance332 in order to fashion a new and hefty dollop of First
Ariz. Free Enter. Club‟s Freedom Club PAC, 131 S. Ct. at 2817 (citations omitted).
As of this writing, the Court is considering yet another First Amendment case in this area.
See Danielczyk v. United States, docket # 12-579 (Whether the ban on campaign
contributions by corporations in the Federal Election Campaign Act, 2 U.S.C. §441b, violates
the First Amendment; and (2) whether restrictions or bans on the right to make campaign
contributions should be reviewed under strict scrutiny, as other restrictions on political
expression are, or instead under a less protective standard).
331 Justice John Paul Stevens made the point his way in his Citizens United dissent:
The final principle of judicial process that the majority violates is the most transparent:
stare decisis. I am not an absolutist when it comes to stare decisis, in the campaign
finance area or in any other. No one is. But if this principle is to do any meaningful
work in supporting the rule of law, it must at least demand a significant justification,
beyond the preferences of five Justices, for overturning settled doctrine. ―[A] decision to
overrule should rest on some special reason over and above the belief that a prior case
was wrongly decided.‖ . . . No such justification exists in this case, and to the contrary
there are powerful prudential reasons to keep faith with our precedents.
Citizens United v. Fed. Election Comm‘n, 130 S. Ct. 876, 938 (2010) (Stevens, J., dissenting)
(footnote and citations omitted).
332 Here again, Justice Stevens took strong issue with his colleagues in the majority in
Citizens United:
Consider just three of the narrower grounds of decision that the majority has bypassed.
First, the Court could have ruled, on statutory grounds, that a feature-length film
distributed through video-on-demand does not qualify as an ―electioneering
communication‖ under §203 of BCRA, 2 U.S.C. §441b. . . .
Second, the Court could have expanded the MCFL exemption to cover § 501(c)(4)
nonprofits that accept only a de minimis amount of money from for-profit
corporations. . . .
Finally, let us not forget Citizens United‘s as-applied constitutional challenge. Precisely
because Citizens United looks so much like the MCFL organizations we have exempted
from regulation, while a feature-length video-on-demand film looks so unlike the types of
electoral advocacy Congress has found deserving of regulation, this challenge is a
substantial one. As the appellant‘s own arguments show, the Court could have easily
329
330
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Amendment protection. Even if one agrees with the substantive
result in the case, it is hard to defend the process by which the
majority bulldozed its way to the outcome it desired. In the Holder
case, by stark contrast, the majority all-too-conveniently dispensed
with a statutory resolution of the case333 in order to announce a
meager and obscure level of First Amendment ―protection‖334 that,
in practice, was audaciously deferential to the mantra of ―national
security‖335 however illegitimately invoked. If Citizens United
signifies the high water mark in First Amendment protection, then
Holder is the barren wasteland floor. If the former is an example of
limited the breadth of its constitutional holding had it declined to adopt the novel notion
that speakers and speech acts must always be treated identically—and always spared
expenditures restrictions—in the political realm. Yet the Court nonetheless turns its
back on the as-applied review process that has been a staple of campaign finance
litigation since Buckley v. Valeo.
Id. at 937–38 (citations omitted).
333 In keeping with the doctrine of constitutional avoidance, Justice Breyer made a sensible
point in his Holder dissent:
I believe that a construction that would avoid the constitutional problem is ―fairly
possible.‖ In particular, I would read the statute as criminalizing First-Amendmentprotected pure speech and association only when the defendant knows or intends that
those activities will assist the organization‘s unlawful terrorist actions. Under this
reading, the Government would have to show, at a minimum, that such defendants
provided support that they knew was significantly likely to help the organization pursue
its unlawful terrorist aims.
Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2740 (2010) (Breyer, J., dissenting).
334 In this case involving political expression and content discrimination, the Holder majority
held that the Court ―must [apply] a more demanding standard‖ than the one which was
described in United States v. O‟Brien.‖ Id. at 2723 (majority opinion) (alteration in original)
(quoting Texas v. Johnson, 491 U.S. 397, 403 (1989)). But exactly how demanding? Given how
the majority ultimately resolved the case and its great deference to Congress and the Executive,
it seems that its new test, at least as applied, was actually less protective than the one
announced in O‟Brien.
335 With all due respect to Chief Justice Roberts, who is often a strong defender of First
Amendment freedoms, the following pronouncement by him seems perplexing, contradictory, or
perhaps both:
Our precedents, old and new, make clear that concerns of national security and foreign
relations do not warrant abdication of the judicial role. We do not defer to the
Government‘s reading of the First Amendment, even when such interests are at stake.
We are one with the dissent that the Government‘s ―authority and expertise in these
matters do not automatically trump the Court‘s own obligation to secure the protection
that the Constitution grants to individuals.‖ But when it comes to collecting evidence
and drawing factual inferences in this area, “the lack of competence on the part of the
courts is marked,” and respect for the Government‟s conclusions is appropriate.
Holder, 130 S. Ct. at 2727 (emphasis added) (citations omitted). Diminishing the domain of the
First Amendment even further, the Chief Justice later emphasized: ―In this area perhaps more
than any other, the Legislature‘s superior capacity for weighing competing interests means that
‗we must be particularly careful not to substitute our judgment of what is desirable for that of
Congress.‘‖ Id. at 2728 (quoting Rostker v. Goldberg, 453 U.S. 57, 68 (1981)). In light of such
statements, what meaningful degree, if any, of First Amendment protection survives?
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judicial sensitivity to First Amendment values, then the latter is an
example of judicial indifference to those values. Citizens United and
Holder thus offer a bewildering picture of the Roberts Court––a
portrait of a Janus-faced majority with one set of eyes sharp and the
other sightless.
To step back and alter the metaphor, all of the just-mentioned
observations are, of course, but pieces of an unfinished mosaic of the
Roberts Courts and its free speech jurisprudence.336 To be sure,
more work needs to be done and more information compiled and
analyzed. A pattern does, however, seem to be developing in which
a majority will likely sustain First Amendment claims in cases
involving campaign financing,337 commercial speech,338 and in many
content-discrimination cases.339
Beyond that, as Dean Erwin
Chemerinsky has argued, the Roberts Court is hardly a full-fledged
friend of the First Amendment.340 Moreover, we have yet to see how
336 All in all, some have been understandably critical of the current Court‘s First Amendment
free expression jurisprudence: ―Some Roberts Court decisions have been protective of speech,
such as the rulings in Snyder v. Phelps and Brown v. Entertainment Merchants Ass‟n. But a
look at the overall pattern of Roberts Court rulings on speech yields a clear and disturbing
conclusion: it is not a free speech Court.‖ Chemerinsky, supra note 278, at 734. By contrast,
―[o]ne area where the Roberts Court has uniformly ruled in favor of free speech claims is in
challenges to campaign finance laws. There have been several such cases in the first six terms
of the Roberts Court, and all have struck down the challenged laws.‖ Id. at 732.
337 See Citizens United, 130 S. Ct. at 913. To be fair, Chief Justice Roberts and Justice Alito
have shown some restraint in this area. In this regard, consider the following: ―In a major new
ruling on money in politics, almost certainly headed for the Supreme Court, a three-judge U.S.
District Court in Washington on Friday rejected a Republican Party challenge to the federal law
that limits so-called ‗soft money‘ donations to political parties.‖ Lyle Denniston, ―Soft Money”
Donation
Ban
Upheld,
SCOTUSBLOG
(Mar.
26,
2010,
1:03
PM),
http://www.scotusblog.com/2010/03/soft-money-donation-ban-upheld. ―The District Court ruled
that the GOP challenge was not aided by the Supreme Court‘s Jan. 21 ruling in Citizens United
v. Federal Election Commission, expanding constitutional protection for some forms of campaign
spending by non-party groups.‖ Id. As it turned out, the Court summarily affirmed the lower
court. Republican Nat‘l Comm. v. Fed. Election Comm‘n., 130 S. Ct. 3544, 3544 (2010)
(affirming with Justice Scalia, Justice Kennedy, and Justice Thomas noting probable
jurisdiction and urging that the case be set for oral argument). Theodore Olson was the
attorney for the Republican National Committee. Brief for Appellants Opposing Motions to
Dismiss or Affirm, Republican Nat‘l Comm. v. Fed. Election Comm‘n., 130 S. Ct. 3544 (2010)
(No. 09-1287), 2010 WL 2300561.
338 See PIETY, supra note 59, at 3 (critiquing First Amendment rights of corporations);
David Kairys, The Contradictory Messages of Messages of Rehnquist-Roberts Era Speech Law:
Liberty and Justice for Some, 2013 U. ILL. L. REV. 101 (2013) (arguing that there are stark
differences between the Court‘s treatment of modes of speech available to people of ordinary
means, and modes available to corporations and the wealthy).
339 See, e.g., United States v. Alvarez, 132 S. Ct. 2537, 2542 (2012).
340 See Chemerinsky, supra note 278, at 734. Ms. Millett and others have also noted that:
[W]arning signs are up: there are limits to how far the Roberts Court appears willing to
go. The more closely integrated speech is with proscribable conduct, as in Humanitarian
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it might rule on other matters, such as the intersection between the
First Amendment and conditions of receipt of federal money.341
Mindful of what has been charted out in this Foreword and yet
other considerations, it remains to be seen whether behind the
curtain of the new absolutism there is a brand of libertarianism, not
of the kind that elevates the rights of the powerful over the
powerless,342 but rather of the kind that lifts the level of liberty for
all, rich and poor, corporate and non-corporate, and religious and
radical types alike. Meanwhile, the old words of the late Harold
Laski merit repetition, if only to remind all of us of something basic
about our system of freedom of expression:
We ought not to accept the easy gospel that liberty must
prove that it is not licence. We ought rather to be critical of
every proposal that asks for a surrender of liberty. Its
enemies, we must remember, never admit that they are
concerned to attack it; they always base defense of their
purpose on other grounds. But I could not, for myself, serve
principles which claimed to be just if their result was to
make the temple of freedom a prison for the impulses of
men.343
As the attentive reader will surely discern, there is a measure of
Law Project, Williams, and Milavetz, the more likely the Court is to tolerate restrictions
and, critically, to defer to governmental judgments in the course of applying
constitutional scrutiny. In addition, the Court seems far more receptive to disclosure
requirements imposed by law (Citizens United, Reed); although that arguably can be
attributed to the countervailing public speech interest in obtaining information bearing
on matters of public interest such as legislative referenda and electioneering speech.
Millett et al., supra note 113, at 42.
341 See Alliance for Open Society Int‘l, Inc. v. Agency for Int‘l Dev., 651 F.3d 218, 231 (2d Cir.
2011) (citing Rust v. Sullivan, 500 U.S. 173, 203 (1991); FCC v. League of Women Voters of Cal.,
468 U.S. 364, 402 (1984); Regan v. Taxation with Representation of Wash., 461 U.S. 540, 550–51
(1983)). A divided panel of the court of appeals held that Section 7631(f) of the United States
Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 ―likely violates the First
Amendment by impermissibly compelling [respondents] to espouse the government‘s viewpoint
on prostitution.‖ Alliance for Open Society Int‟l Inc., 651 F.3d at 223, 230. According to the
panel, section 7631(f) ―falls well beyond . . . permissible funding conditions,‖ because it ―does not
merely restrict recipients from engaging in certain expression . . . but pushes considerably
further and mandates that recipients affirmatively say something.‖ Id. at 234. The case is now
before the Supreme Court for oral argument. Agency for Int‘l Dev. v. Alliance for Open Society
Int‘l, 2013 WL 135533 (Jan. 11, 2013) (granting certiorari).
342 See PIETY, supra note 59, at 9 (discussing Nike‘s situation).
343 HAROLD J. LASKI, LIBERTY IN THE MODERN STATE 158 (Penguin Books 1937) (1930)
(British spelling in quoted matter).
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irony here.344
Even so, the liberty vouchsafed by the new
absolutism might well live in general harmony with that
championed by Professor Laski, if only the Court and our country
allow for it. Strange as that may seem, it is, I submit, a goal worthy
of free men and women.
344 See ISAAC KRAMNICK & BARRY SHEERMAN, HAROLD LASKI: A LIFE ON THE LEFT 153–55,
301, 303 (1993) (noting, among other things, that Laski was a Labour Party activist and a
member of its national executive committee and a noted figure in the Socialist League).
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APPENDIX345
FREE SPEECH FIRST AMENDMENT CASES DECIDED BY THE ROBERTS
COURT346
 [6–2: Plurality, SB]: Beard v. Banks, 548 U.S. 521 (2006)347
 [9–0, AS]: Davenport v. Wash. Educ. Ass‘n, 551 U.S. 177
(2007)348
 [5–4: In parts, SA]: Davis v. Fed. Election Comm‘n, 554 U.S.
724 (2008)
 [5–4, JR]: Fed. Election Comm‘n v. Wis. Right to Life, Inc.,
551 U.S. 449 (2007)349
 [5–4, AK]: Garcetti v. Ceballos, 547 U.S. 410 (2006)
 [5–4: In parts, JR]: Morse v. Frederick, 551 U.S. 393 (2007)
 [9–0, AS]: N.Y. State Bd. of Elections v. Torres, 552 U.S. 196
(2008)
 [9–0, SA]: Pleasant Grove City v. Summum, 555 U.S. 460
(2009)
 [6–3: Plurality, SB]: Randall v. Sorrell, 548 U.S. 230 (2006)
 [8–0, JR]: Rumsfeld v. Forum for Academic & Inst. Rights
Inc., 547 U.S. 47 (2006)350
 [7–2, AS]: United States v. Williams, 553 U.S. 285 (2008)
 [7–2, CT]: Wash. State Grange v. Wash. State Rep. Party,
552 U.S. 442 (2008)
345
Key:
 = sustains First Amendment claim;
 = denies First Amendment claim.
The bracketed references refer to the vote in the case. The initials refer to the member of the
Court who wrote the lead opinion, either by way of a majority or plurality opinion.
346 As indicated by the Appendix‘s title, free speech cases decided on non-First Amendment
grounds are not included in this list. See e.g., Dayton v. Hanson, 550 U.S. 511, 515 (2007)
(speech and debate clause case); FCC v. Fox Television Stations, Inc. 556 U.S. 502, 529 (2009)
(holding that because the FCC failed to give Fox or ABC fair notice prior to the broadcasts in
question that fleeting expletives and momentary nudity could be found actionably indecent, the
Commission‘s standards as applied to said broadcasts were unconstitutionally vague).
347 Justice Alito took no part in the consideration or decision of this case. Beard v. Banks,
548 U.S. 521, 523 (2006).
348 This case was consolidated with Washington v. Washington Education Association.
Davenport v. Wash. Educ. Ass‘n, 551 U.S. 177, 177 (2007).
349 This case was consolidated with McCain v. Wisconsin Right to Life, Inc. Fed. Election
Comm‘n v. Wis. Right to Life, Inc., 551 U.S. 449, 449 (2007).
350 Justice Alito took no part in the consideration or decision of this case. Rumsfeld v.
Forum for Academic & Inst. Rights Inc., 547 U.S. 47, 70 (2006).
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 [6–3, JR]: Ysursa v. Pocatello Educ. Ass‘n, 555 U.S. 353
(2009)
 [9–0, SB]: Locke v. Karass, 555 U.S. 207 (2009)
 [6–3, JR]: Holder v. Humanitarian Law Project, 130 S. Ct.
2705 (2010)
 [8–1, JR]: United States v. Stevens, 130 S. Ct. 1577 (2010)
 [9–0, SS]: Milavetz, Gallop & Milavetz, P.A., v. United
States, 130 S. Ct. 1324 (2010)
 [5–4, AK]: Citizens United v. Fed. Election Comm‘n, 130 S.
Ct. 876 (2010)
 [8–1, JR]: Doe v. Reed, 130 S. Ct. 2811 (2010)
 [6–3, AK]: Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011)
 [7–2, AS]: Brown v. Entm‘t Merchs. Ass‘n, 131 S. Ct. 2729
(2011)
 [8–1, JR]: Snyder v. Phelps, 131 S. Ct. 1207 (2011)
 [8–1, AK]: Borough of Duryea v. Guarnieri, 131 S. Ct. 2488
(2011)
 [9–0, AS]: Nev. Comm‘n on Ethics v. Carrigan, 131 S. Ct.
2343 (2011)
 [5–4, JR]: Ariz. Free Enter. Club PAC v. Bennett, 131 S. Ct.
2806 (2011)
 [8–0, CT]: Reichle v. Howards, 132 S. Ct. 2088 (2012)351
 [6–2, RBG]: Golan v. Holder, 132 S. Ct. 873 (2012)352
 [7–2, SA]: Knox v. Serv. Emp. Int‘l Union, Local 1000 132 S.
Ct. 2277 (2012)
 [6–3: Plurality, AK]: United States v. Alvarez, 132 S. Ct.
2537 (2012)
Total # of Cases
First Amendment Claims Sustained
First Amendment Claims Denied
Unanimous Judgments
Unanimous or Near-Unanimous in Cases Denying First
Amendment Claims
5–4 Judgments
29
12
17
8353
9354
6
351 Justice Kagan took no part in the consideration or decision of this case.
Reichle v.
Howards, 132 S. Ct. 2088, 2097 (2012).
352 Justice Kagan took no part in the consideration or decision of this case. Golan v. Holder,
132 S. Ct. 873, 894 (2012).
353 Seven of these eight cases deny First Amendment claims.
354 Two of these nine cases were decided 8–1.
409 COLLINS
3/11/2013 2:00 PM
2012/2013]
The Roberts Court
465
Author of Majority/Plurality Opinions
Roberts
Kennedy
Scalia
Breyer
Alito
Thomas
Ginsburg
Sotomayor
Kagan
9
5
5
3
3355
2
1
1
0
First Amendment Opinions authored by
Female Justices
Majority Opinions
Ginsburg
1356
Sotomayor
1357
Separate Opinions
Ginsburg
3358
Sotomayor
2359
Kagan
1360
Total number of opinions (majority & otherwise) by
Female Justices: 8361
Number of Opinions by Male Justices: 38362
355 Here, note that Justice Alito participated in twenty-seven of the twenty-nine cases listed
above.
356 Golan v. Holder, 132 S. Ct. 873 (2012).
357 Milavetz, Gallop & Milavetz P.A., v. United States, 130 S. Ct. 1324 (2010).
358 Reichle v. Howards, 132 S. Ct. 2088 (2012) (Ginsburg, J., concurring); Davis v. Fed.
Election Comm‘n, 554 U.S. 724 (2008) (Ginsburg, J., concurring in part and dissenting in part);
Beard v. Banks, 548 U.S. 521 (2006) (Ginsburg, J., dissenting).
359 Knox v. Serv. Emp. Int‘l Union, Local 1000 132 S. Ct. 2277 (2012) (Sotomayor, J.,
concurring); Doe v. Reed, 130 S. Ct. 2811 (2010) (Sotomayor, J., concurring).
360 Ariz. Free Enter. Club v. Bennett, 131 S. Ct. 2806 (2011) (Kagan, J., dissenting).
361 See supra notes 355–59.
362 The number on the left indicates the number of opinions, either majority or otherwise:
409 COLLINS
466
2
2
5
6
2
4
3
3
3
1
1
1
2
3
3/11/2013 2:00 PM
Albany Law Review
[Vol. 76.1
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) (Justice Roberts writing
for the majority; Justice Breyer writing in dissent).
United States v. Stevens, 130 S. Ct. 1577 (2010) (Justice Roberts writing for the
majority; Justice Alito writing in dissent).
Citizens United v. Fed. Election Comm‘n, 130 S. Ct. 876 (2010) (Justice Kennedy
writing for the majority; Justice Roberts writing in concurrence; Justice Scalia writing
in concurrence; Justice Stevens writing to concur in part and dissent in part; Justice
Thomas writing to concur in part and dissent in part).
Doe v. Reed, 130 S. Ct. 2811 (2010) (Justice Roberts writing for the majority; Justice
Stevens writing to concur in part and concur in the judgment; Justice Scalia writing in
concurrence of the judgment; Justice Breyer writing in concurrence; Justice Alito
writing in concurrence; Justice Thomas writing in dissent).
Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011) (Justice Kennedy writing for the
majority; Justice Breyer writing in dissent).
Brown v. Entm‘t Merchs. Ass‘n, 131 S. Ct. 2729 (2011) (Justice Scalia writing for the
majority; Justice Alito writing in concurrence of the judgment; Justice Breyer writing
in dissent; Justice Thomas writing in dissent).
Snyder v. Phelps, 131 S. Ct. 1207 (2011) (Justice Roberts writing for the majority;
Justice Breyer writing in concurrence; Justice Alito writing in dissent).
Borough of Duryea v. Guarnieri, 131 S. Ct. 2488 (2011) (Justice Kennedy writing for
the majority; Justice Thomas writing in concurrence of the judgment; Justice Scalia
writing to concur in part and dissent in part).
Nev. Comm‘n on Ethics v. Carrigan, 131 S. Ct. 2343 (2011) (Justice Scalia writing for
the majority; Justice Kennedy writing in concurrence; Justice Alito writing in
concurrence).
Ariz. Free Enter. Club‘s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011) (Justice
Roberts writing for the majority).
Reichle v. Howards, 132 S. Ct. 2088 (2012) (Justice Thomas writing for the majority)
Golan v. Holder, 132 S. Ct. 873 (2012) (Justice Breyer writing in dissent).
Knox v. Serv. Emp. Int‘l Union, Local 1000 132 S. Ct. 2277 (2012) (Justice Alito
writing for the majority; Justice Breyer writing in dissent).
United States v. Alvarez, 132 S. Ct. 2537 (2012) (Justice Kennedy writing for the
plurality; Justice Breyer writing in concurrence of the judgment; Justice Alito
writing in dissent).